The Art Of Choosing: Selecting The Right Dispute Resolution Mechanism For Your Case

Introduction

Various techniques are employed to settle a conflict between parties, and such techniques are alternatively referred to as dispute resolution, suitable dispute resolution, or alternative dispute resolution (ADR). ADR can be deployed as a tool to settle a variety of disputes, including those pertaining to families, neighbours, jobs, businesses, housing, personal injuries, securities, consumers, as well as the environment. ADR as a mechanism provides the conflicting parties with an alternate means to resolve their disputes instead of adopting the customary practice of litigating before the courts. ADR may be deployed by the parties independently, or even at the instance of a court of jurisdiction, which may mandate the same at a relatively earlier stage in the litigation process to allow the parties to settle their differences without having to undergo any trial.

The legal community, which includes judges, lawyers, and law researchers, has been focused on finding alternatives within as well as beyond the established legal system for a number of years. This has long been recognised as a crucial step in the judicial reform process which also facilitates the “access-to-justice” strategy.

Dispute resolution is the process of resolving a variety of disputes or conflicts between conflicting parties. It can be effectively deployed as a tool to resolve a conflict within a reasonable time period without having to litigate before the courts and at the same time avoid burdening the courts with the responsibility to decide cases, which can otherwise, be effectively decided.

Kinds of Dispute Resolution

In the simplest of terms, the process of bringing any disagreement before a court of law is known as litigation. In the event, that disputing parties are unable to come to a mutually agreeable resolution, they will each bring their case to the court for seeking a decision so as to settle their disputes on merits and in the interest of justice. Thus, litigation generally turns out to become a drawn-out and occasionally intricate process.

It is a formal legal procedure that requires the judicial system to settle a disagreement brought before it. When a dispute is brought before a court by way of petition/suit, etc., by a litigant the court is entrusted with the responsibility to determine the course and speed of such litigation, and the lawyers presenting the case of the litigants must abide by the statutory regulations, procedures as well as the customary procedures in place in the concerned courts.

Needless to say, an individual can always represent oneself, however, it makes sense to engage a lawyer to handle the case to ensure that the intricate legal procedures are well handled. Due to the number of parties as well as the time required, litigation can become quite costly. While the majority of the matters/cases are settled out of court, with a judge making the ultimate decision at a final hearing, some matters/cases cannot be settled out of court and must be heard in full before a judge. Egal processes, with the exception of the majority of family cases, are NOT secret and, once they are over, are legally binding (though appeals are possible), therefore the decision made by both parties must be complied with.

Alternative Dispute Resolution – ADR

When addressing a dispute settlement, the phrase “alternative dispute resolution” (ADR) is frequently used. ADR facilitates resolving a disagreement without having to go to court and effectively receives a resolution in a time-bound manner.

Using alternative dispute resolution (ADR) methods, such as mediation and arbitration, can help the parties to a dispute save time and money. These procedures provide the added advantage of helping the parties to the disagreement to become less hostile towards one another, regain some control over their respective situations, accept the outcome, resolve the disagreement amicably, and enhance their perception of justice. Private settings are ideal for resolving disputes since they allow for a more practical, economical, and effective handling of the situation.

Alternative Dispute Resolution (ADR) is a strategic tool established to provide an effective and equitable alternative to the traditional judicial system. This way of delivering justice is rapid. Arbitration, mediation, conciliation, mediation-arbitration, mini-trial, private judging, final offer arbitration, court-annexed ADR, and summary jury trial are just a few of the alternatives to litigation.

Types of Alternative Dispute Resolution

Mediationis a method of resolving disputes that can take numerous forms. It is primarily a process in which the parties to a dispute gather in one location with an independently neutral person present to help obtain a resolution of the dispute or to narrow the issues between the parties. The parties must participate in the mediation, including preliminary work, and agree to be obligated by any agreement reached.

Before and during the mediation, documents can be shared and presented.  Mediation is less formal and thus less expensive than the alternatives (arbitration or litigation). The mediator’s goal is to stay unbiased throughout the process and to cooperate with the parties. It is up to the parties to reach an agreement during mediation. The mediator will just assist in this process and will not determine the decision for the parties.

To minimise any form of confusion at a later stage, it is always a good idea to draft a settlement or resolution agreement to be signed by both parties during mediation. Mediation is a relatively less formal course of proceeding than arbitration or litigation and the same is often preferred because of this, as well as the lower cost.  Mediation is confidential in nature, and it allows the parties to reach such kind of agreements that a court or Arbitrator can practically not in an Arbitral Award or a Court Judgment.  The parties must agree to mediate voluntarily, and they must also agree voluntarily to any settlement arrangement. A settlement agreement is a legally enforceable contract, which implies that if one party fails to follow it, it ends up inviting legal action against itself, which the opposite party can take to enforce its claims. However, in general practice, once a settlement is concluded by way of mediation, the parties typically comply with it.

In comparison to mediation, arbitration is relatively a more formal legal process. In many aspects, the process is similar to that of a court litigation, although the parties and Arbitrator have more leeway in view of the comparatively less formal procedure in place. Details of the disagreement are provided to the Arbitrator in the form of documents and, if necessary, oral representation as well. Based on the information presented, the Arbitrator will render a ruling on the issue in order to resolve it. It is noteworthy that in an arbitration proceeding, which is usually driven by the complexity of the case or an arbitration proceeding involving various concerns that necessitate broader competence to deliver the ruling, there can be more than one arbitrator.

Arbitrations are relatively private in nature as opposed to litigation proceedings, which is the primary reason why parties prefer arbitration over litigation to resolve their disputes. Another advantage is that if such disputes involve a particular technical subject matter, an arbitrator with relevant knowledge in the field can desirably be appointed. Arbitration is often thought to be less expensive than litigation, and the parties have more discretion over the process because there is no judge enforcing deadlines and penalties.

On account of the flexibility ingrained in the arbitration process, it is frequently accepted as a much superior way to resolve issues in terms of the ease of the process, flexibility of scheduling, less formal procedure, relatively much more cost-effective, and time-saving. In furtherance of the same, the parties’ ability to exert control over the process and the fact that they do not have to wait for the court to be available for hearings, tend to result in time and cost savings. Arbitral awards are generally enforceable in the same manner that court judgements are, and they can be enforced in the majority of countries.

Conclusion

Litigation, which implies “dispute,” as a legal term indicates the process of enforcing or defending a litigant’s legal rights. This form of dispute mechanism involves a contested action between the opposing parties which is usually conducted in before a judge in a Court setting. The party whose rights have been violated, legally termed as the accuser, is referred to as the Plaintiff. The Defendant, on the other hand, is the person who may be accused for infringing the legal rights of the plaintiff. Litigation as a broad phrase encompasses a wide range of legal actions and activities. As a mechanism, litigation includes pre-negotiations such as obtaining permission of legal letters in the goal of settling the matter, without having to go to trial. It is often handled by way of a court trial, involving a judge rendering the final decision, which are may be appealable to before an Appellate Court . Thus, a Court trial forming part of the litigation is eventually resolved by way of the concerned judge arriving at the final decision. Court appeals are also a part of litigation proceedings. Since a settlement can simultaneously take place anytime during the ongoing litigation, it is often completed before a full trial begins. 

Litigation can be beneficial in many complex situations, particularly when substantial questions of law and in view of particular facts and circumstances are involved. However, numerous aspects must be considered before committing to any action, including time, expense, and the chance of an undesirable outcome.  In view of the aforesaid, it becomes imperative to take note of the fact that in some cases, there is a greater possibility that the parties may end up gaining more from arbitrating or mediating a dispute rather than engaging in “full-blown” litigation in the courts.

In comparison to litigation, ADR is characterised by its cost-effectiveness, time-saving, specific skillsets, accessibility, capacity to arbitrate disputes pleasantly, and lack of formality. Using the successful techniques indicated in an Alternative Dispute Resolution, any conflict can be resolved.

ADR frequently leads to positive interactions with clients/parties since it focuses on resolving problems by way of conversations and compromises rather than litigation. ADR allows parties to avoid going to court to settle their disagreements. Every decision made by the concerned judge is likely to exacerbate tensions between the two parties. This is owing to the fact that ADR approaches, particularly conciliation, can be somewhat coercive. This is because ADR is more proactive and offers solutions for dispute resolution. Therefore, there is no doubt that deployment of the different types of ADRs is a much simpler approach to obtaining justice for settling any disagreement that may arise.

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