What are the advantages of ADR? Do you think ADR process is appropriate in every dispute? What is your take on this?

What are the advantages of ADR? Do you think ADR process is appropriate in every dispute? What is your take on this?

INTRODUCTION

Disputes are inevitable in every society where human beings live. There are many disputes settling mechanisms developed by various authorities to curb a problem of disputes and prevent breach of national security. With the aim of settling dispute in a more acceptable manner, governments of many world states through constitution and domestic laws of their nations they have established institutions include judiciary and other organs of the government for the purpose of solving social disputes. The judiciary and government organs are public bodies which settle disputes of people, but there are other private mechanisms which settle disputes referred to as “Alternative Disputes Resolution ”.

Alternative Disputes Resolution as the name suggests for itself, it is an alternative process of resolving disputes without attending court trial. This process involves arbitration, mediation and reconciliation, negotiations and neutral case evaluation. Alternative Disputes Resolution is the modern scheme of procedure for disputes resolution, which has been developed, introduced and implemented at the middle levels of the court system in Tanzania in response to a problem facing the administration of justice in the country that is, congestion and excessive delays in the disposal of cases in the courts. The process of dispute settlement involves the professionals or trained persons or conciliator.

ADVANTAGES OF ALTERNATIVE DISPUTES RESOLUTION

Alternative Disputes Resolution is speedy, it reduce time consuming . Trials are lengthy, in some cases it takes many years for jury to hear and decide the matter before court of law. Alternative disputes resolution is quick and gives result in a reasonable time because the proceedings before alternative disputes resolution is not that much formal compare to proceedings before court of law. Alternative disputes resolution gives freedom to parties to arrange all things concerning their case, like to choose arbitrator or mediator and time for hearing, court trial do not easily give such freedom to parties in a case without proper reason.

Alternative Disputes Resolution is less expensive, in mediation or arbitration parties are allowed to be on their own without representative or paid advocate, this reduce cost to parties in a case. It is very rare for a party to attend court without advocate because court proceedings are too professional and procedural compare to proceedings before alternative disputes resolution. Also, since ADR is speedy, it reduce expenses in dealing with a case because it takes short time to complete a case.

Alternative Disputes Resolution maintains confidentiality, proceedings before ADR are confidential, not every person is allowed to attend tribunal sessions unless there is a need to do so. Litigation is public, anyone can attend court session and understand what is going on between the parties and this situation interfere confidentiality of the proceedings. For people who prefer confidential of their matter, it is better to solve their disputes through ADR and not court which always entertain matters in an open court.

Alternative Disputes Resolution Maintain Relation, the expectation of ADR is to settle matter amicably, to give all parties a relief or satisfaction and not a matter of lose or win as experienced before court of law . ADR intends to re-conciliate parties in disputes in a way that will not affect their relationship after case. In court of laws it is a matter of lose or win, tension is too much before court of laws and relation of parties may come to an end due to court decision. The dispute resolution system may provide process that will not leave people to work together, angry and frustrated with either the result or the process itself. In the ADR process the parties could rather learn information that will help them to work more effectively in the future.

Alternative Disputes Resolution Prevents Future Disputes, parties may adopt strategies used to settle their matter and implement it to the future disputes. The strategies used by mediator or arbitrator to achieve a resolution between disputed parties may provide framework to deal with other anticipated disputes.

APPROPRIATENESS OF ALTERNATE DISPUTES RESOLUTION

ADR is not appropriate to every dispute due to a number of reasons as discussed below;

Some disputes contain difficult point of law  which may hinder decision invalid. Most of arbitrators and mediators have partial expertise in legal matters and they may fail to give proper decision to the dispute. If a dispute is too confusing, and there is possibility that ADR will fail to reach proper decision, parties may choose to skip ADR if it is not mandatory depending nature of a dispute. In some cases it is mandatory for a matter to be tried by ADR before taking it to court, in Tanzania, amendment of first schedule of The Civil Procedure Code , under GN No. 381 of 2019 require civil suits be tried for first time in mediation before being taken for full trial before court of law.

Enforcement, it is not easy to enforce the decision which is not made by court especially when award was not registered and not recognized by judiciary. Enforcement is an act of implementing decision of the court, decision made by other bodies or tribunals cannot be easily implemented because there is no appropriate separate legal mode to deal with implementation of such decision.

CONCLUSION

My take on this, I think an idea of alternative disputes resolution is important because, there is a shortage of time for court to entertain all kind of disputes. Some disputes which can be resolved out of court it is a relief for court to entertain other suits. Depending on a nature of dispute, parties must choose wisely where to take their disputes depending to reliefs and remedies they want.

REFERENCE

BOOKS

Bansal A.K (2005) Arbitration & ADR, Universal Law Publishing Co. Pvt. Ltd, Delhi.

Court of Appeal of Tanzania (2004) the History of Administration of Justice in Tanzania, 1st edition, Mathews books & Stationeries, Dar-es-salaam.

Hornby, A. S, (2002), Oxford Advanced Learners Dictionary, 6th Edition, Oxford university Press, New York.

JOURNALS AND ARTICLE

Bedman, B “From Litigation to ADR: Brown & Root’s Experience”, in Dispute Resolution Journal. Vol. 50 1995

Berman, Gray, S “Facilitated Negotiation: An Effective ADR Technique” in Dispute Resolution Journal Vol. 50 April, 1995

ONLINE SOURCE

https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgiarticle=1883&context=hlr

https://asauk.org.uk/wpcontent/uploads/2013/08/Why-use-ADR.pdf

https://www.academia.edu/1908629/Dispute_Resolution_Confidentiality_Privilege_Secrecy