ARINDA HOSEA ADR WRITEUP

Questions.
a) Discuss the different modes of alternative dispute resolution.
b) What would you consider to be the advantages of alternative Dispute resolution?
c) What are the challenges of alternative dispute resolution?

a) Discuss the different modes of alternative dispute resolution Alternative Dispute

Resolution.
INTRODUCTION
This also known as external dispute resolution includes dispute resolution processes and
techniques that act as a means for disagreeing parties to come to an agreement of litigation. It is a
collective term for ways that parties can settle disputes, with or without the help of third parties.
Alternate dispute resolutions approaches are gradually being recognized at both national and
international level in the field of law and commercial sectors. The diverse approaches can help
parties settle their conflicts efficiently and expeditiously on their own terms.
In addition to the trials, alternate conflict resolution strategies are in character. Alternative
conflict resolution techniques can be used in almost all contested matters, which can be settled
by agreement between the parties according to statute. Alternative conflict resolution methods
can be used in different dispute types, in particular; legal, economic, and industrial and family
disputes. Alternative dispute resolution strategies provide the best solution with respect to trade
disputes to aid the country’s economic development.
The word “Alternative Dispute Resolution” includes various negotiation mechanisms
including, Lok Adalat, Arbitration, Conciliation, and Mediation in its fold. Several countries
have used this Alternative Dispute Resolution strategy for successful dispute resolution.
Mediation is the most common sort of alternative dispute resolution. In addition to this, some
had defined mediation as the most appropriate method for resolving disputes. Mediation as a tool
for resolving disputes is not a new concept. To put it simply, mediation is a friendly dispute
settlement involving a neutral third party who serves as a facilitator and is called a’ mediator.
First and foremost, Negotiation. Negotiation In Latin the word 'negotiate' derives from 'Neg'
meaning 'not' and otium' connoting 'ease' . Negotiation is discussion aimed at reaching
agreement.7 Negotiation encompasses any exchange of information made in search of
agreements. Negotiation is a discussion between or more disputants who are trying to work out a
solution to their problem. The parties acknowledge that there is some conflict of interest between
them. Therefore, they think it is important to use some of influence to get a better deal, rather
than simply taking what the other side will voluntarily give them. There are two central facets of
negotiation they are sharing data and seeking settlement. When it comes to Negotiation, it
involves the parties and their counsel to come together and agree on how to resolve the dispute
between them that is in filing the dispute .Negotiation has got considerable benefits to counsel,
the parties (litigants), and of the court system. The savings in costs and time would be
considerable; conversely, the cost of not negotiating in appropriate cases is considerable not only
to the parties or at least one of the parties, but also to counsel in the dispute/case. Counsel is
probably diverted from paying attention to other business. The undisputed off business, or work
in progress, assumes a position in the business of the firm.
Arbitration. Arbitration has been in Uganda since 1930 under the Arbitration
[Link], a type of alternative dispute resolution (ADR), is a strategy for resolving
conflicts outside of the court system in which the parties to a disagreement refer it to one or more
people, known as arbitrators, to whom they intend to be bound by their judgement. It is a method
of dispute settlement in which a third person examines the evidence in the case and renders a
legally enforceable decision for both
Parties. Arbitration awards have limited right of review and appeal. Arbitration is not the same as
civil and mediation proceedings. Arbitration can be optional, or mandatory. Clearly, mandatory
arbitration can only come from a law or arrangement that is mutually signed where the parties
agree to arbitrate all current or future disputes without necessarily knowing what disputes will
ever occur. In India, if the matter is referred to Arbitration then the provisions of the Arbitration
and Conciliation Act, 1996 will apply.
Conciliation. It is a form of alternative dispute resolution in which the parties to a dispute hire a
conciliator to help them resolve their issues individually. They do this by reducing conflicts,
strengthening coordination, identifying problems, offering technical assistance, discussing
possible solutions and bringing about a negotiated settlement. In this manner, it is a bit different
from Arbitration. It is a consensual process in which the parties involved are free to reach an
agreement and try to resolve their disagreement through conciliation. The method is versatile,
which helps the parties to determine the time, duration and content of the conciliation procedure.
Mediation. Today, mediation is a voluntary and informal method of dispute resolution
throughout the world. It is a simple, voluntary, party-centred and structured negotiation process
in which a neutral third party helps parties resolve their disputes friendly through the use of
specified communication and negotiation techniques. Mediation is a process where the parties
are themselves in control of it. The mediator’s role is strictly that of a facilitator, assisting the
parties in reaching a negotiated settlement of their disagreement. The mediator takes no decisions
and does not enforce his opinion on what should be a fair settlement. Both sides meet with an
experienced neutral mediator during the mediation process. The session starts with each side
explaining the issue from their point of view, and the remedy they seek. Once the respective
views of each party is discussed, the mediator then splits them into private rooms, initiating a
“caucus conference” process and then “joint meetings with the parties.” Both sides agree to the
limit. The mediator does not have the power to dictate his decision regarding the party.
Mediation allows a conflict to be handled swiftly, with minimal stress and expense, while still
preserving the parties’ relationship and maintaining anonymity.
Judicial settlement. Section 89 of the Code of Civil Procedure also refers to judicial settlement
as one of the alternative modes of resolution of disputes. There are, of course, no specific rules
for such settlements framed up to now.

b) What would you consider to be advantage of alternative dispute resolution?

There has been an increase in the activity of mediation and arbitration, given the various
advantages of ADR as compared to the court adversarial system, the need for ADR can be
summed up as follows;
Helps limit the hostility between the parties: Generally with alternative dispute resolution, the
parties are both committed to finding a resolution by working together in good faith.
Hear what you need to hear: Clients including in house counsel can get wrapped up tight in
their version of the case. Sometimes, hearing from the other side and hearing the thoughts of a
neutral third party can get both sides to focus on the realities of the dispute versus the dug-in
positioning.
Utilizes a simplified process to resolve issues: ADR generally avoids the formalities and
complexity of litigation.
Less expensive: For many reasons, alternative dispute resolution is usually less expensive than
traditional litigation. Flexible: In most instances, the parties can create their own process to help
resolve their fight, that is, there’s total flexibility. ADR decreases on um1ecessary adjournments
by preliminary points of law, the most serious being injunctions or other interlocutory
proceedings evident in the commercial court. This is because ADR is between two parties who
wholesomely can solve their issues shortly without taking too much time. Speedier resolution:
ADR almost always leads to a faster resolution of the dispute, meaning both parties can get back
to business quicker.
Confidentiality: Alternative processes are typically confidential, meaning the fight is out of the
public eye and more importantly sensitive documents, trade secrets, etc. are protected from
disclosure.
Involves experts: Depending on how the parties structure their process, ADR allows for the use
of experts to conduct the process or decide critical issues where a judge or jury may not have the
time or ability to quickly grasp the nuances of the dispute.
Acknowledges the fact that few cases go to trial: On average, 90% of litigation settles before
ever going to trial. If so, then ADR is a simpler, faster, and less expensive way to get the parties
to where they are most likely to end up anyway.
c) What are the challenges of alternative resolution?
No appeal: Unless you write an appeal process into your agreement or, for very limited
circumstances, a binding ADR procedure lacks the ability to appeal the decision. For example, if
you have a single arbitrator and they “go rogue,” your ability to fix it is limited. Likewise, while
not binding, a bad mediator can mean a wasted day or two.
Dubious objectivity: Let’s face it, people are people and both sides are striving to find
“neutrals” that will best support their position. In much arbitration, each party picks one
arbitrator and the service picks the chair of the panel. You can bet that the arbitrators picked by
the parties are pre-disposed to their respective party’s position.
Not binding: Unless the parties are using a binding process, settlement negotiations and
mediation are not binding. A party is free to say no or even renege on an agreement reached
during the process in other words; there is no guarantee of resolution.
Expensive: Parties to ADR often make the mistake of thinking that the cost will be minimal; it’s
not. It can be very expensive when you consider that, unlike the court system, you must pay for
the time of the neutrals, for the meeting/hearing room, for the service (AAA, JAMS, etc.)
managing the process, along with your counsel, travel, discovery costs, etc.
And, if the hearings are broken up due to scheduling conflicts or illness, the cost can be
significantly more than either party anticipated. Similarly, summary relief is rarely granted,
meaning you will most likely be headed to a hearing regardless of the strength of your summary
judgment motion.
Can be a stalling tactic: If the process isn’t binding, one of the parties may use ADR as a way
to stall and push the dispute out into the future. And, if the parties are not cooperating, the
process can drag on and on and on.
Power imbalances can play out: The party with the most money and power can often sway the
process. This imbalance can play out in their favor, which is why Congress recently banned
mandatory arbitration for sexual harassment cases.
Lack of precedents: In court, you can generally rely on years of precedents to help determine
and guide how the process should turn out. With ADR, however, precedents are merely
suggestions in many instances. The arbitrator or summary jury can decide pretty much how they
wish, based on whatever evidence they want to rely on and however their sense of “fairness”
dictates this can be frustrating to in-house counsel and the business, especially if the other side
plays dirty. It is also why you hear “split the baby” when in-house lawyers refer to arbitration.
Compromise is expected: For most paths you must come to the table expecting to compromise
your claim — the parties use ADR to avoid protracted litigation. Unfortunately, many business
leaders want to roll the dice for complete and total victory; they will not likely get that outcome
with ADR. If that is what the business wants, alternative dispute resolution may not be the best
path.
In conclusion, the following are the challenges of alternative dispute resolution as discussed
above.

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