Abstract This paper discusses the advantages of taking alternative disputeresolution rather than legal action and the specific conditions under which it is more beneficial. This paper shows us that the advantages of alternative disputeresolution are not universal, nor automatic, but should be the result of early screening and careful decision making.
Contents:
Overview
Overview of Alternative DisputeResolution Reported Advantages of Alternative DisputeResolution Recommendations
Conclusion
From the Paper "Alternative dispute resolution describes the settling of disputes outside of a traditional legal arena (Legal Information Institute). Alternative dispute resolution can be used in almost any type of situation. This can include family, neighborhood, housing, and environmental disputes. Dispute resolution can be used in a number of business situations, including personal injury, employment, and consumer disputes (Center for Analysis of Alternative Dispute Resolution Systems). Alternative dispute resolution is also sometimes called dispute resolution or appropriate dispute resolution (Center for Analysis of Alternative Dispute Resolution Systems).
Alternative dispute resolution is actually a catch-all term that refers to a number of different processes used to resolve disputes. In reality, there are a number of different types of dispute resolution processes. These include arbitration, early neutral evaluation, mediation, a mini-trial, negotiation, neutral fact-finding, ombuds, private judging, settlement conferences, a summary jury trial (Center for Analysis of Alternative Dispute Resolution Systems), and conciliation (Legal Information Institute). Arbitration and mediation are the most common forms of disputer resolution (Legal Information Institute)."
Abstract This paper provides a first-hand description of a disputeresolution process that did not end well. The paper begins "When I was working a part-time job during my teens, I witnessed a very poignant form of internal dispute between a fellow employee and our manager. "
From the Paper "When I worked a part-time job as a teenager, I witnessed a poignant internal dispute between a fellow employee and our manager. The employee was an attractive, 17-year-old female. The manager was a male in his late 50s, married, and was seen as a pillar of the community. Despite widespread community recognition of his contributions to the social and economic environments, however, the manager also had a reputation among female workers at the company for approaching them on a sexual level. As the female employee was under the legal age of consent, she thought she was safe from sexual harassment. Yet as the summer progressed, she noted that our manager continued to make advances and would frequently try to corner her, such as asking her to work after-hours or off-site with him."
Abstract Over the past few decades, there has been a dramatic change in the way that businesses and courts approach disputeresolution. Businesses are now encouraged to resolve disputes by alternative methods, such as mediation and arbitration, rather than take all disputes to court.
This paper shows that effective disputeresolution is vital to the reputation of businesses, as well to the growth of trade and investment. Many methods of disputeresolution attempt to resolve conflicts that do not involve an alleged violation of law. This paper discusses Alternative DisputeResolution (ADR) which refers to any form of mediation or arbitration and their use in resolving disputes and is largely used amongst companies worldwide to resolve business disputes. The paper shows that many ADR approaches are very flexible and include early neutral case evaluation, facilitation, conciliation, mediation, arbitration, negotiation, or any other disputeresolution method that may be appropriate for a particular dispute. The paper looks at the reasons behind the increasing popularity of ADR including the fact that a growing number of legal mandates require the use of mediation and arbitration to resolve disputes.
From the Paper "Companies around the globe have used arbitration and mediation to settle a variety of disputes. For example, in the United States, arbitration and mediation are often used to settle labor disputes that are rooted in conflicting interpretations of existing employment contracts, construction disputes between general contractors and subcontractors relating to construction damage claims, or between contractors and owners relating to the nature of work and payment clauses in employee contracts, and shareholder disputes concerning the valuation of stock in closely held companies (Riskin, 1997, p. 277-279)."
Abstract In today's society, lawyers are encouraged to present the option of pursuing alternate disputeresolution to clients as a matter of good practice and lawyers who fail to do so may be subject to malpractice liability. This paper explores the growing popularity of alternate disputeresolution (ADR) due to the high costs, both financially and to relationships, of traditional litigation.
Subtitles in the Paper: Alternate DisputeResolution; Ethics and DisputeResolution; The Costs of Conflict; Ethical Issues in Choosing Whether and How to Mediate; Client Satisfaction; Methods of DisputeResolution in Businesses; The Role of Counsel; Results of Alternate DisputeResolution; A Lawyer's Duty to Advise About ADR; Ethical Rules of ADR; Lawyer as Client Representative or Advocate; Lawyers as Neutrals; Conflict of Interest; Malpractice and Negligence; History of ADR; Everyday Disputes; Determining the Role of a Mediator; Conclusion.
From the Paper "Alternate dispute resolution is a practical business and personal solution, as there are significant costs associated with different ways of resolving disputes, which often outweigh the conflict itself .
The direct costs associated with disputes include the fees of lawyers and other professionals. In 1994, nearly 18 million cases were filed in U.S. courts at a cost of $300 billion.
Productivity costs involve the value of lost time, or the cost of what those involved would otherwise be producing. Continuity cost is the eventual end of relationships that would have continued without the conflict. Emotional cost reflects the pain of focusing on emotions and the problems this can cause psychologically."
Tags: American, Bar, Association, ABA, ombuds, Supreme, Court
Abstract This paper discusses how in an increasingly heterogeneous American society, the formality of courts and their adherence to the traditional adversary model has led to the recent emergence of several methods of alternative disputeresolution (ADRs). It examines how some of these methods, which include mediation, negotiation and arbitration, provide an alternative to litigation and have several advantages. It attempts to show that mediation is the most effective form of alternative disputeresolution, by examining the current system, the adversarial system and what aspects of this system create the need for alternative forms of disputeresolution. It also compares its advantages to the other forms of alternate disputeresolution.
From the Paper "In examining the reasons for the need of alternative dispute resolution, it is necessary to analyze the current method of resolving conflict in the American legal system. This system, known as the adversarial system, bases its existence on the central tenet "that conflict resolution is best achieved through an adversary process" (Levett Notes). This consists of two parties in a courtroom represented by an appointed advocate who is familiar with the law. The advocate presents his client's case before the judge, an independent fact-finder who weighs the merits of the case and evaluates their consistence with the law. This system is different from the inquisitorial system, which is used primarily in Europe, and has several crucial distinctions from the adversarial system."
Abstract In the past, duels and showdowns were commonplace methods of disputeresolution, but things have changed. Perhaps as a reflection of a more complex society or a growing recognition of individual rights, the United States has experienced an enormous increase in the number of lawsuits filed over the last half of the 20th century. However, when people and businesses are faced with resolving problems in a fair and equitable manner, they have many other options available to them, which have become increasingly popular as court calendars continue to lengthen. Alternative disputeresolution has greatly expanded over the last several years to include many areas in addition to the traditional commercial dispute; mediation has become an important first step in the process. This paper provides an overview of alternative disputeresolution methods and approaches, a discussion of potential drawbacks and constraints, and an assessment of whether these methods are appropriate for the public sector. A summary of the research is provided in the conclusion.
From the Paper "Some jurisdictions and courts in the U.S. require early neutral evaluation. Under early neutral evaluation, parties to litigation are required to make presentations to a neutral evaluator. The evaluator is engaged to provide both parties with an assessment of the strengths and weaknesses of their respective positions, and to facilitate disputes. Courts in some jurisdictions may have case management conferences at which time staff counsel or other court officers may take active roles in promoting settlement discussions."
This paper examines the effectiveness, in business, of utilizing various conflict system techniques in lessening the negative impact of arguments and disputes while at the same time encouraging nonviolent resolutions.
Abstract The writer of this paper details the various conflict system techniques available which allow concerned parties to integrate these methods and analytical abilities of disputeresolution by dispersing animated opinions, recognizing concerns while at the same time putting aside hard feelings. This paper contains an overview of the theoretical foundation for implementing conflict systems techniques. This paper examines the theoretical foundation behind the use of conflict system techniques which in effect allows the concerned parties to decrease differences while assisting them in simplifying the pertinent concerns of the organization through peaceful means. This paper discusses how the utilization of conflict system techniques, when applied correctly, particularly in business, lessens the influence of arguments and disputes and encourages nonviolent resolutions at the same time.
Table of Contents:
Introduction
The Application of DisputeResolution Techniques
New Challenges Presented by the Application of these Techniques
Mediation
Arbitration
Conclusion
From the Paper "The process of mediation not only saves time but also avoids extravagant spending of financial resources. Normally, the process of mediation lasts less than one working day and can be arranged according to the party's convenience. Furthermore, the mediation course costs approximately 40% to 90% rates of settlement. In contrast to the courts, the charges of an attorney are comparatively less in the mediation process. In addition, other charges of defense such as the specialized witness costs, as well as the costs of deposition are also removed. Also, since the concerned parties do not leave the office at any point during the mediation process, the loss of work is substantially less and so is the loss of their income."
Abstract This paper briefly describes the history of the trend of settling disputes on every level. The paper discusses the nature of conflict and looks at a few different types of conflict resolution. The paper explores new trends in the movement as it expands to help create a system that allows all parties to knowledgeably settle disputes without further conflict, legal action or violence.
Outline:
Introduction
History of the DisputeResolution Movement
Reasons To Employ Conflict Resolution Conflict Resolution Types of Conflict
Conclusion
From the Paper "Conflict resolution is, in its simplest form an attempt by two or more parties to reach an agreement that meets the needs of all parties, without excluding the voice of either and within the range of the ability of both parties to compromise in the face of any given conflict. The trend toward settling disputes on every level is moving in the clear direction of conflict resolution as a first and/or even last resort, as a result of the desire of many individuals and entities to clearly outline the nature of the needs of those they represent and allow the other party(s) to do the same, so that confusion and misunderstanding is eliminated from the resolution and both parties enter into an agreement, hopefully amiably understanding the rights and responsibilities of the agreement."
Abstract This paper explains a distinguishing feature of alternative disputeresolution is that the decision is made by an individual who is completely impartial in that decision and who refers to some standard rights, duties, law or common-law, and then applies some credible and authoritative body of rules or precedents. The author points out the characteristics of the process is a quick solution, confidential and without prejudice, in which the parties can discuss and debate the dispute before the dispute is a locked-in condition. The paper stresses that the importance of the individual being properly informed of the legalities in the mortgage ADR process because, within the mortgage lending company sector, there are mortgage companies considered to "predators in lending," charging unnecessary premiums in insurance and excess interest.
Table of Contents
Statement of Thesis
Introduction
Characteristics of the ADR Process
Characteristics within the Mortgage Company ADR Process: A Fictitious Example
The Applied Process of Alternative DisputeResolution Summary and Conclusion
From the Paper "A scenario is given in the work entitled 'First City Bank and the Press-Developing a Public Relations Strategy" is that in which a mortgage company scam has been discovered and has been published in the local paper. First City Bank is stated as being involved through having offered "allegedly high interest rate loans in low-income and minority neighborhoods as well as a high number of foreclosures in these areas." Further stated is the fact that private mortgage companies have been accused of collusion in relations with contractors and that the blame has been placed on the government within the city."
Abstract The paper examines the various methods of disputeresolution that are available to parties and critically examines the various disadvantages and advantages of the most popular methods of alternative disputeresolution (ADR). It also examines litigation and discusses to what extent ADR has replaced litigation.
From the Paper "The case management introduced by Lord Woolf has encouraged the use of ADR and CPR rule 44 has meant that severe cost penalties can be imposed by the courts if ADR is not considered or is refused unreasonably. This is demonstrated in the case of Dunnett , here Railtrack had successfully defended an appeal from Dunnett and sought its costs, when the trial judge had granted Dunnett leave to appeal he advised her to consider ADR, she approached Railtrack but they refused the ADR. The Court of Appeal held the parties had a duty to further the overriding objective of the CPR and that this included considering ADR, in this case Railtrack had failed to do this before the cost of the appeal had begun to accumulate. This attitude by the courts demonstrates the importance that is placed on ADR and it puts it at the centre of the civil justice system."
Abstract The paper examines the legal and psychological aspects of the different forms of alternative disputeresolution (ADR): negotiation, arbitration, mediation, summary jury trial. The paper answers the question of which types of cases this is best suited to and which cases are viewed as the best form of conflict resolution to prevent litigation and why.
Outline:
Objective
Introduction
Background
Mediation
Different Types of Alternative DisputeResolution Summary and Conclusion
From the Paper "One type of mediation process that is frequently used is the mediation process in relation to the Americans with Disabilities Act (ADA) as "more than ever, employers and employees are turning to mediation and other forms of Alternative Dispute Resolution to resolve equal employment opportunity disputes." (U.S. EEOC, National Council on Disability and U.S. Department of Justice nd) Titles I and II of the ADA and Section 501 of the Rehabilitation Act make it a crime for private employers who employ fifteen or more individuals."
Abstract The paper offers an understanding of the disputeresolution methods in India, with a focus towards the emerging trend towards alternative disputeresolution (ADR). The paper explores the rationale behind the ADR movement to assess its usefulness in terms of realizing the ends of justice. The paper includes footnotes instead of a bibliography.
Outline:
Archetypes of Disputes Determination
Seeking ADR
Legitimization of ADR
From the Paper "Discords are bound to arise in a society and the ingenious human mind has devised ways and means to resolve the same. The phenomenon, law, itself can be seen as a result of the quest to address potential problems. The nature has endowed people with rationality. Through the medium of State norms and institutions were created for securing social order and to attain the ends of justice. State function through its different organs and judiciary is one among them directly responsible for the administration of justice. The judiciary is the tangible delivery point of justice in a layperson's perception. Resolving disputes is fundamental to the peaceful existence of society. Therefore effective and efficient systems for determination of disputes become an obvious appendage."
Abstract In this paper, the writer describes a dysfunctional (harmful) hypothetical conflict situation in an organization and applies various conflict resolution methods to resolve the dispute. The desired outcomes of such efforts and possible scenarios in which challenges are presented to the disputeresolution efforts are also discussed.
From the Paper "Dispute (or conflict) is one of the most common human emotions; hence it is a rare workplace or organization that is completely free from conflict. While traditional theories about workplace conflict recognized it only as a negative force that adversely affected the working of an organization, modern day theories recognize that conflict may not always be harmful. Some organizations even promote a degree of conflict among their employees, believing it to be a beneficial phenomenon for stimulating creativity and growth. It is, however, commonly observed that dysfunctional conflicts in workplace, particularly in team or group situations cause significant distress and adverse emotions among the people involved. If such disputes remain unresolved for some time, they are likely to take a heavy toll on employee morale and result in personal, social and economic costs."
Abstract This paper explains people have a tendency to assume that parties to a sexual harassment complaint cannot work together to resolve the dispute; but, by using mediation, the manager can potentially save the company's relationship with both employees and avoid a lawsuit. The author points out that, in today's work environment, both employers and employees are recognizing that they should not treat each other as adversaries when they must produce goods or perform services together. The paper stresses that workplace mediation presents important benefits to both employers and employees by providing fast, mutually satisfactory resolutions and by fostering mutual respect through improved communication.
From the Paper "Mediation of workplace disputes can be very beneficial for companies that have no plans to change the structure or philosophy of their organizations. Employment litigation can be an expensive process, in terms of dollars spent, time lost, and relationships ruined. Mediating disputes as they arise in the workplace can help companies avoid those costs."
Abstract This paper presents an example of a disputeresolution model. The writer explores a viable model for disputeresolution and provides the details of that process in this paper. The paper illustrates decision making, power of those involved, low cost for the process and how it will be effective for those that use the model.
From the Paper "It provides the opportunity for those involved in the dispute to determine its edges and core and then place the dispute against those who have an interest and a right in seeing it resolved.
It also allows the issue of power in the workplace to be addressed. It maintains the sense of chain of command by allowing the first higher up to hear about the dispute or problem before anyone else does and provides that person the opportunity to correct it if possible. If that person is involved in the dispute however, it allows the employee to have a way to file the complaint without having to take it to the person it is about simply because that person is the next up on the chain of command ladder."
