SIMAD UNIVERSITY Keyd abdirahman salaad

Alternative Dispute Resolution (ADR) Simad university Faculty of law Alternative Dispute Resolution (ADR) Keyd abdirahman salaad

ALTERNATIVE DISPUTE RESOLUTION (ADR) ADR can be simply explained as the means or methods of resolving legal disputes or conflicts privately through the intervention of a third party other than via litigation. ADR is a term used to define a set of approaches and techniques aimed at resolving disputes in a non-confrontational way. In a civil law context, ADR represents any number of techniques and processes utilized by parties in dispute that allow for agreements and settlement outside of the litigation process. Alternative Dispute Resolution is a generic term used to describe a range of procedures designed to provide ways to resolving a dispute as an alternative to court procedures.

Concept of Alternative Dispute Resolution Alternative Dispute Resolution is the methods, processes or procedure other than adjudication by a presiding judge in court - litigation, in which a neutral third party participates to assist in the resolution of issues in controversy. ADR is a methods of resolving legal disputes without going to court. Alternative Dispute Resolution creates calm and friendly atmosphere for the parties to discuss and agree on something.

Some General Features of ADR To Support for the development of guiding principles and values. Commonly identified values included confidentiality; party self-determination; neutrality; balancing power; ensuring fairness of process; achieving settlement and maintaining the reputation of the resolution facilitator. Pervaded by faith in a rational approach to problem solving generally. This rational approach must be flexible enough however, to factor into the resolution process, vast dimensions of human psychology and the entire spectrum of human emotions that can be engaged by civil law disputes. ADR requires the facilitation of a third party neutral. These include arbitrators, mediators and negotiators.

General Requirements for Successful ADR Depends upon the goodwill of all the participants Parties must believe that a settlement achieved through cooperation and compromise whether assisted by a mediator, arbitrator or the parties themselves, will be superior to the decision that would be handed down by a court Participants must agree at the outset that all sides involved enjoy equal authority in reaching a settlement. Important objectives must be identified and lesser objectives subordinated in favor of a desired outcome Empowerment of the participants at every step of the settlement process is essential ADR mechanisms require that any involved organization be represented by persons with sufficient authority to bind the organization they represent. As a corollary to the involved parties dedication to the settlement process, a commitment to open and equal access to information is necessary.

Types of Alternative Dispute Resolution Alternative Dispute Resolution can be categorized into three based on procedure that is used to resolve the dispute and they are: Procedure of Agreement – Negotiation and Mediation Procedure of Decision – Arbitration Procedure of Advice – investigation and fact-finding to recommend the conflicting parties on the situation.

The Purpose of ADR First and foremost, there would not be the need for ADR if there are no conflicts or disputes. Therefore, the primary purpose of ADR is to create avenues and platforms for amicable resolution of already existing or intending conflicts or disputes in such a way that it is quick, cost less and at the same time does not infringe on the rights and privacy of the parties. However, disputes can be defined as a lack of compromise between parties. Disputes can also be said to arise when parties fail to reach satisfactory bargain over an issue. Invariable the parties are unwilling to concede to each other without the right benefit. When such phenomenon arises, the process of ADR is set up either through facilitating a resolution, i.e. by bringing the parties to acknowledge and appreciate their difference and therefore reach a mutually beneficial conclusion, or by providing the parties with a mutually binding decision, i.e. through the establishment of rights and commitments

Purposes of Alternative Dispute Resolution It creates avenues and platforms to resolve conflicts and disputes outside of the court; It serves as a tool of resolving disputes in “win- win” situation . It assists conflicting-parties to use his negotiation and persuasion skills to convince the other party on reaching an agreement that both parties are satisfied; and It safeguards the interest of the parties in the conflict.

Advantages of Alternative Dispute Resolution It saves time and money; It provides a chance for the parties to their feelings and emotions to each other; It maintains and improves the cordial relationship among the conflicting parties; The outcome is usually satisfactory for the parties; and It promotes and protects the privacy of the disputing parties.

Disadvantages of Alternative Dispute Resolution Lack of legal knowledge; Inability to decide criminal matters; High cost when hiring qualified practitioner of Alternative Dispute Resolution; Consuming time when an agreement or a decision can’t be reached in specified time; and Decision or agreement is reached only when parties are satisfied because alternative Dispute Resolution is voluntary.

Binding and Non-Binding ADR Negotiation, mediation, and conciliation programs are non-binding, and depend on the willingness of the parties to reach a voluntary agreement. ADR may be either binding or non-binding. Binding ADR such as arbitration produces a third party decision that the disputants must follow even if they disagree with the result, much like a judicial decision. Non-binding ADR produces a third party decision that the parties may reject.

Difference between Alternative Dispute Resolution and Litigation Alternative Dispute Resolution is Voluntary; Decisions and Agreements are enforceable by law ; Alternative Dispute Resolution mechanisms may be formalized and structured or not. It depends on the process that is used; and Unrestricted presentation of evidence, arguments and interest of the parties. Litigation is involuntary; Decisions are binding and the right of appeal can be exercised; Formalized and highly structured by Predetermined rigid rules; Restricted opportunities for each party to present its evidence and argument.

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