In all aspects of life conflict can be found and solutions need to be found. In business disagreements arise that cannot be simply resolved. These disputes used to often lead directly to the courtroom and the process of litigation. Litigation is a slow and extremely costly exercise that many businesses simply cannot afford. A faster, cheaper solution had to be found and this came in the any different forms of Alternative Disputes Resolution processes.
Depending on the dispute and the solution that needs to be found an alternative solution is available. Alternative Dispute Resolution processes can be either fairly passive, such as negotiation where the two parties agree on a way forward on their own. Or it can be more active where a neutral third party will hear both sides of the story and then pass judgment. This judgment is not always legally binding, as it is in litigation, but the resolution to the dispute is definitely faster and cheaper. In the modern economy where time spent not creating money is money lost to he business.
The Research Assignment will include a detailed look at the various alternative dispute resolution processes as well as a look at the concept of dispute and conflict. An in-depth look into the development of the various processes is also included to give a fuller understanding into why alternative dispute resolution exists.
Chapter 2
What is Alternative Dispute Resolution? Alternative Dispute Resolution was developed as an alternative to the traditional method of dispute resolution, namely Litigation. Litigation is an extremely costly and time consuming form of dispute resolution.
It also does not give the parties involved sufficient control over the outcomes of their disputes. Serious concerns have been raised over the spiraling costs, fees and delays commonly found in traditional litigation. The adversarial nature of litigation with its “win all or lose all” attributes, have been found to be significant detrimental to business relationships. Alternative dispute resolution (ADAIR) was seen as a method by advocates to resolve a client’s disputes more efficiently and economically, with less risks and better results. The concept is premised on the principle of consensus.
ADAIR operates within a structure of a specific community according to the culture of the community moral norms. Western societies have come to appreciate the necessity for justice through ADAIR techniques based on the process of conciliatory solutions. The worldwide trend over the 2 decades has been a move towards ADAIR to the observed shortcomings of the traditional justice systems. Alternative dispute resolution refers to a variety of different methods and techniques that can be used for resolving disputes without having to resort to the litigation process.
The main purpose of ADAIR was to reduce the costs and time delays associated tit litigation, and to introduce a less formal method to resolve disputes. Another reason was to introduce consensual problem solving and to allow individuals the ability to control the outcome of their dispute. The dispute resolution mechanisms were designed to preserve professional and personal relationships and therefore offered a better dispute resolution process all round. From the beginning of Alternative dispute resolution it gained recognition throughout the world with both common and civil law countries following the trend.
In the world of dispute resolution there are three methods for finding reconciliation. To resort to power to decide the dispute. To determine who is right in terms of the law, rule or standard. To reconcile the underlying interests of the dispute ADAIR applies to the third approach of dispute resolution. The interests addressed are the needs, desires, concerns and fears. To fully understand Alternative dispute resolution a full understanding of the concept of dispute is required. For most people the terms conflict and dispute may seem to be one and the same thing.
However there are some fundamental differences between the two terms. Conflict exists where there is an incompatibility of interests. The Oxford English Dictionary defines conflict as a serious disagreement or argument; a prolonged armed struggle; an incompatibility between opinions, principles etc. Uncontrolled conflicts can sometimes manifest themselves in behavioral disagreements which could lead to violence. Violent conflict is usually condemned. However, conflict is a normal part of human behavior and there would be very little change without it.
All decision-making processes contain an element of conflict. The democratic process in most societies is built on the basis of conflicting ideas and interests. Conflict can become damaging when irreconcilable conflict cannot be resolved through negotiation or discussion. Certain conflicts can be resolved through dispute resolution procedures such as injunctions or court interdicts. However, not all conflicts can be resolved through dispute resolution processes. Disputes can be defined as a certain class of conflicts which can manifest in various judicial issues.
A dispute involves the disagreement over certain issues which can be resolved through negotiation, mediation or a number of other dispute resolution methods involved a completely neutral third party. The preferences in the dispute can be objectively examined by the parties in the case of a negotiation or can be viewed by a neutral party in the case of other methods. The neutral will then take a view on the issues at hand and can assess the correctness of one party or another. An actual dispute will not exist until a claim is asserted by one party over another, which in turn the other party disputes.
Very often a contract will stipulate the preferred method of resolving a dispute which must be followed. However, if no dispute exists and one party would like to enforce a contractual aspect on the other party this can be done through the routs. But if a dispute exists then specified process must followed as per the contract. Disputes are merely an expression of people’s differences in society and so by airing disputes, opportunities are afforded to one another to better understand the other parts opinion and peacefully resolve the differences.
Three major categories of dispute resolution which can be considered are a. Dispute resolution processes that involve decision making by the parties themselves – Negotiation and mediation fall into this category b. Dispute resolution processes which involve private adjudication by a neutral third arty – this would include arbitration c. Dispute resolution processes which involve the adjudication being made by a public authority – this would include administrative decision-making and formal litigation.
The major difference between behavioral conflicts and judicial disputes is a significant concept in Alternative Dispute Resolution. As the differences in the approach which needs to be taken to find a resolution differs significantly. Dispute resolution has significant limitations in resolving behavioral conflicts. As disputes vary so significantly in both nature and range, even in a similar étagère differences can be found in certain issues and factors that influence the opposing parties. For this main reason, it is easy to see that no one dispute resolution method can be suitable for all types of disputes.
Certain simple disputes can be resolved through negotiation, while other similar disputes require the intervention of a neutral third party to introduce carefully devised procedures for evaluating the issues at hand. However, some disputes require the intervention of an expert neutral third party or the use of an adjudicator. For this reason many processes vary in range from very informal for arsenal disputes, to very professional and organized procedures which can be used to resolve complicated matters.
For this reason it is crucial that the neutral party involved in the dispute resolution understands the particular dispute they are faced with and the implications, as well as the various dispute resolution options available. The third party would be able to select or create a resolution process which should be most suitable for the particular dispute issue. For this reason both parties have greater confidence in a neutral third party who clearly understands the dispute occurring and all the underlying issues present.
This will lead to a settlement which is acceptable to both parties involved.
Chapter 4
The Development of Alternative Dispute Resolution Some forms of Alternative Dispute Resolution like negotiation, mediation and arbitration are not new concepts in dispute resolution. Disputes were resolved long before the legal system was formalized into courts and judges. Alternative Dispute Resolution methods have grown rapidly in prominence in the USA since the political and civil conflicts of the buffs.
Community dispute resolution was created from the social activism years of the sass’s and helped thrust Alternative Dispute Resolution into the mainstream. With the creation of the Civil Rights Act in the USA in 1964, came the creation of the Community Relation Services, this relied heavily on mediation and negotiation for preventing and resolving racial and ethnic disputes. With the introduction of new laws protecting individual rights this lead more people to file lawsuits to settle conflicts. Laws such as this gave more people new grounds for seeking compensation for rights violations.
This led to a significant increase in court cases and eventually overloaded the court system. This created long delays and the occasional procedural error on behalf of the courts. The overloaded courts forced an increase in the use of Alternative Dispute Resolution methods. The new “Alternative Dispute Resolution Movement” was formally recognized by the American Bar Association in 1976. This new movement did not only mean more arbitration being used, but also the further development of other techniques such as mediation, conciliation, facilitation and fact-finding.
Traditional forms of dispute resolution have also long existed in South Africa. In the late 197(Yes the people’s courts in South Africa were known as maggot. Commercial arbitration has for a long-time been a part of the dispute resolution framework in South Africa and other western countries, and is very well established in South Africa. The Alternative Dispute Resolution Association of South Africa has been significant in trying to institutionalism private commercial arbitration and to a lesser extent mediation.
In the sass’s a major shift took place in the industrial relations arena in South Africa and gave rise to the need for more appropriate forms of Alternative Dispute Resolution. This urgent need was initially fulfilled by the independent Mediation Service of South Africa. This body was instrumental in introducing forms of mediation and arbitration to the industrial relations sector. The major success of this initiative was borne out by the reliance on mediation and arbitration in the new Labor Relations Act and by the future establishment of the ECMA to carry out these functions.
The goals of Alternative Dispute Resolution can be summarized as follows * To relieve court congestion, as well as to reduce unnecessary cost and time delays * To enhance the community’s involvement in the dispute resolution process * To facilitate the easy access to justice To provide an avenue to more effective dispute resolution. Many experts on Alternative Dispute Resolution in the USA have expressed doubts as to whether the practice of Alternative Dispute Resolution can ever significantly reduce the congestion in the court system.
There is also no evidence to this fact in South Africa either. However, there are alternative methods for resolving disputes which are far less expensive and time consuming than litigation. This is being shown in the labor market where research has shown that dismissal disputes dealt with using alternative methods are less costly and kicker through arbitration than through industrial courts. The second goal of Alternative Dispute Resolution is to enhance the community involvement in the resolution of disputes.
South Africans recent history has shown how sections of the population were alienated from the formal court system. The development of appropriate forms of alternative dispute resolution can enhance the community involvement and give the resolution methods a form of legitimacy. The third goal of the Alternative Dispute Resolution is to facilitate easier access to justice, which is perhaps ambitious. As an example, parties who resolve a dispute with he assistance of a mediator may not see the result as justice. But the result may simply be viewed as a more a modest goal of merely settling a dispute.
The most important goal of Alternative Dispute Resolution is arguably the fourth goal, which is to provide a more effective dispute resolution. The main essence of Alternative Dispute Resolution is to provide an alternative method and process of resolving disputes more effectively than automatically resorting to litigation. 5. Chapter 5 Types of Alternative Dispute Resolution A wide variety of Alternative Dispute Resolution methods and techniques have men developed over the years as a direct result of the growth in international trade.
The search has been driven by the need to find a quicker and cheaper alternative to litigation. Some of these methods include negotiation, mediation, conciliation, arbitration, mini-trial, adjudication and last offer arbitration. Many of these techniques have been developed by leading universities and Alternative Dispute Resolution centers throughout the western world. Alternative Dispute Resolution can basically be divided into two main categories. These categories are adjudicatory and Nan-adjudicatory.
The Adjudicatory procedures ouch as arbitration, adjudication and binding expert determination lead to a binding ruling that decides the result of the case. The non-adjudicatory procedures resolve disputes by the agreement of the parties without adjudication. The adjudicatory procedures can be classified as determinative, while the non-adjudicatory can be seen as facilitative. Non-adjudicatory processes include mediation or conciliation and are seen as facilitative because the neutral party assists the disputing parties reach an agreement. Alternative Dispute Resolution can be seen as allowing disputing parties to preserve their win privacy.
Despite a wide variety of Alternative Dispute Resolution techniques being available, each method has its own unique method which can be customized to suit any case. With this in mind the neutral practitioner can design a distinctive format for your particular dispute, creating a hybrid dispute resolution process. This allows more freedom and flexibility than the regular constraints of the litigation process. Which is clogged with litigation rules and procedures, while the alternative offers the practitioner the ability to create a hybrid process for each individual case?
The following brief descriptions of a number of Dispute Resolution methods are drawn from the Labor Relations Act, 1995. – Written notification – this is a simple dispute resolution process, created when a party gives another party a written notification that there is a dispute. A dispute is created when one person makes a claim or demand on another person, who then rejects it. The need to claim may arise from a perceived injury or from a need. The labor relations act provides for the ‘referral of a dispute’ to be on a specific form with all the relevant details included for the dispute resolution.
Conciliation
Conciliation is a form of assisted negotiation between two or more parties in which an independent third party intervenes by determining a dispute resolution process to attempt to resolve the dispute by making certain recommendations with the object of settling the dispute. -Arbitration – is a form of adjudication and is a process where a neutral third party hears both arguments and evidence from each opposing party. A decision will then be made by the third party by issuing an award which is final and binding. The decision is final and binding and there is no chance of an appeal.
Con-Arab – This is the process in which a third party tries, through the use of mediation, to help parties in a dispute reach a settlement. However, if a settlement cannot be reached the third party will make a final binding decision. This process is commonly seen as an extremely effective hybrid process offering the best of both worlds to the disputing parties. -Arab-con Section 138(3) – this section of the Labor Relations Act allows an arbitrator to suggest to two parties involved in arbitration to revert to a conciliation process.
For this to take place the arbitrator needs to have the remission of both consenting parties. -Facilitation – Facilitation is a process whereby a facilitator assists two or more parties in their communication concerning a dispute or conflict. The facilitator will be involved in assisting both parties in creating an agreed process which they will then guide the disputing parties through to a consensus. -Litigation – This is the adjudication of a dispute by a judge. The judge is appointed by the state and who issues a judgment after a formal process of evidence has been presented.
This form of resolution can be subject to an appeal. Negotiation – Negotiation is a process of bargaining between the two disputing parties. No third party is used to adjudicate. Each party exchanges its ideas and presents its position to the other party. Tactics are used to persuade the other party and move them closer to their position, with the ultimate goal of reaching a settlement of the dispute. -Fact finding – An impartial third party is appointed who will then investigate a particular situation by either hearing evidence presented to them or by considering evidence placed before them.
A report is then presented which establishes all the relevant facts to the parties. When doing the fact finding, the fact finder must comply with the rules of natural justice. Further recommendations can also be made based on the facts found, if this is agreed by both parties. Fact finding is similar to a commission of enquiry except the fact finder does not have the necessary power to make recommendations. -Advisory arbitration – the can be used as part of the conciliation process if the conciliator determines that the dispute may best be solved by arbitration.
The adjudicator then decides on the issue via the arbitration process except the award is not ending on the parties but is a form of recommendation. -Determination – Determination is the process in which the neutral third party decides on an issue after a discussion with both disputing parties. The determination is binding and final. -Mediation – This is the process by which participants, with the assistance of a neutral person, isolate the issues at hand and develop options and alternatives. A consensual agreement is then reached that will accommodate their specific needs.
The neutral third party is known as the mediator who sole purpose is to improve the decision making process.
Chapter 6 Negotiation
Negotiation can be loosely defined as “the process we use to satisfy our needs when someone else controls what we want”. Negotiation is a process where parties to a dispute hold discussions with a view to reconciling differences and establishing areas of agreement, settlement or compromise. It can be seen as communication for the purpose of persuasion and is the pre-eminent method of dispute resolution.
Negotiation involves the parties discussing the dispute amongst each other in an attempt to resolve the conflict. This is still one of the quickest and simplest forms f dispute resolution, because the parties themselves involved in the dispute know their relevant strengths and weaknesses. This puts the disputing parties in the best position to come to a compromise. Should the dispute not be resolved through negotiation, the disputing parties will then resort to other forms of Two main forms of negotiation can be found, firstly a problem solving approach and then a more competitive approach.
The problem solving approach puts more emphasis on the disputing party’s rights while the competitive approach puts emphasis on the party’s rights. Both forms involve the consideration of he alternatives to a negotiated settlement, that being the consideration of the likely outcome and the cost of an adjudicatory procedure such a litigation and arbitration. A Major advantage of negotiation is the informality and because of this the whole process can save a lot of time. Other major advantages are the saving on cost and the disputing parts ability to control the pace of the negotiation procedure.
The speed of negotiation is due to the opposing parties dealing directly with one another. Despite the positives, negotiation is not seen as the best alternative dispute solution process, particularly in an international context where cultural differences may hamper the process. For proper negotiation to work both parties must be willing to negotiate and compromise, this can be hampered by cultural differences due to different views on what is right or wrong. Negotiation offers the advantage of giving disputing parties the control to determine the process and the outcome without any interference of a neutral third party.
The opposing parties decide what the important facts are and then jointly find the best solution for all parties. Most agreements reached through he process of negotiation are more satisfying that a result achieved with the help of a third party. Conciliation and mediation are very similar, and are the terms are often used interchangeably. However, conciliation is often viewed as being more facilitative while mediation is seen to allow the mediator to be more pro-active. This can also occur in reverse.
The process of conciliation can be less structured than in mediation, but a conciliator still tries to bring disputing parties together to ensure they focus on key issues in the dispute. Mediation was first used in labor disputes; this began in the 19th century in OTOH England and the LISA. In the United States the government sponsored mediation from as early as 1913, when commissioners of conciliation were made available to parties in a labor dispute. Mediation became more widely used in the sass’s when national collective bargaining legislation was passed. This was used as a means of dealing with impasses between unions and the government.
Through this process mediation served as a form of social intervention, through which neutrals assisted labor and management find a desirable solution. Mediation has grown to become one of the most common forms of alternative spite resolution. The process involves a neutral third party (mediator) assisting parties to reach a solution that works for them, this is also known as a settlement. The mediator has the opportunity to meet with each one of the disputing parties separately, in doing this the mediator is able to determine the requirements of each party and evaluate their weakness realistically.
The moderator cannot force a settlement on the parties; a court can enforce a settlement reached by the parties. The mediation process is designed to optimize the negotiation process and relies evilly on the individual parties’ determination and co-operation. The mediation process can also be used in similar circumstances to negotiation, particularly in situations where the disputing parties have had some form of relationship, either professional or personal.
Mediation is a process by which the disputing parties systematically isolate disputed issues in order to develop options, consider alternatives and reach a consensus so that future needs may be accommodated Mediation is not an appropriate dispute resolution tool where the dispute between the parties includes disputes where both parties feel there is a need or a ruling on the point to establish a binding precedent, or where one party is convinced they have a clear cut case.
Mediation is also not appropriate where the consensual alternative dispute resolution processes would not be appropriate such as disputes where remedies from a court is needed, where a party has a lack of capacity to act and where rights may be lost. What happens in mediation?
