Alternative Dispute Resolution – ADR Essay

AN ESSAY ON ALTERNATIVE DISPUTE RESOLUTIONS -ADR
The term “Alternative Dispute Resolution” (ADR) is used to describe the many processes that may be employed as an alternative to traditional litigation. For the last several decades, Western industrial cultures have been pushing to adopt more informal ways of conflict resolution, with mediation being one of the most prefered choices. Mediation is defined as a procedure whereby disputing parties, with the aid of an impartial third party (the mediator), strive to define the problems at hand, generate potential solutions, and narrow the field down to a manageable set of choices in order to establish a mutually agreeable compromise (National Alternative Dispute Resolution Advisory Council, 1997). This article focuses on a particular situation in which a representative of one side is sceptical about the involvement of a mediator. In addition, the ultimate goal is to persuade the other side’s representation that a mediator would be beneficial. Mediation, as we’ve established, is when a neutral third person helps the parties to a dispute figure out what the problems are and work towards a solution. When beginning a mediation process, it is crucial to keep in mind the key principles. Mediation is based on the principles of secrecy, neutrality, impartiality, and the voluntary involvement of all parties (Tony Whatling,2012). First, it’s crucial that everyone involved knows they’re under no obligation to participate in a mediation. A party is not required to participate in mediation if it is not in their best interests to do so. The mediator must maintain complete impartiality about the resolution of the dispute, which is the second most important aspect of the mediation process. The mediator’s role is to help the parties brainstorm possible solutions without offering any guidance of their own. It’s also important to remember that mediators usually undergo thorough training in the administration of mediation proceedings. Equally important is that the mediator maintain their objectivity and run the session in a balanced way. Finally, with regards to confidentiality, it is essential1 to remember that the mediators should not divulge any information or anything spoken before, during, or after the mediation. The idea of “mediation” itself may be further dissected into its component parts, with the facilitative, evaluative, and transformational models being the most common ones. Instead than focusing on the legal aspects of the disagreement, facilitators promote negotiations based on the parties’ interests and needs. The parties to the mediation may propose potential outcomes and potential resolutions to the conflict, making it the most popular kind of mediation. The mediator’s role in this paradigm is limited to that of a facilitator; they make no recommendations about indications and are not needed to have any kind of professional expertise relevant to the conflict at hand. This kind of mediation might be used in a variety of settings, including those involving the law of the community, family law, the workplace, organisational dynamics, and the environment. Second, in an evaluative mediation session, both sides are urged to resolve the dispute in accordance with their respective legal positions. In evaluative mediation, the mediator takes on the role of a neutral third party who advises both sides on how the issue should have been resolved if it had been heard in court. A question of whether or not this structure qualifies as mediation has been raised. The mediator is more likely to be held legally responsible for any mistakes made throughout the procedure because of the increased involvement they will have. Commercial, personal injury, trade practise, family law, and anti-discrimination cases are all well suited to this mediation methodology. Finally, transformational mediation prioritises the parties’ autonomy and acknowledgement. In terms of empowerment, it improves parties’ capacity for mutual understanding and decision-making in the future. Regarding the acknowledgement element, it helps people to see things from each other’s points of view and respond appropriately. Cases involving family law, family connections, community conflict, or victim-offender issues would all benefit from this kind of mediation. Numerous disputes have been handled by mediation rather than trial, with the court requiring the parties to try it first. Barrett v. Queensland Newspapers (1999) QDC 150 is an example of this (Barrett v Queensland Newspapers, 1999).
Despite being unable to rule that mediation would fail, the previous court in this case ultimately ruled that all parties must participate in it. Second, it was proposed that the parties try to settle out of court since a trial may take longer than ten days and cut into court time that could be used by other litigants. Furthermore, the expenses were significantly reduced as a result of the early mediation decision, and the parties were made aware of the potential downsides to continuing with litigation. Getting back to the essay’s original intent, a discussion of the advantages of mediation is necessary. First, compared to litigation, mediation is seen as more efficient and economical, meaning that the disagreement is resolved more quickly and with less emotional strain on the parties (Legal Services Link, 2019). Second, participants in mediation are more likely to feel at ease since they are not subjected to cross-examination and will not be informed that they are exaggerating or otherwise telling untruths about the dispute. The involvement of a neutral third party is another advantage of mediation. Having a third party who is not acquainted with the participants or the scenario may help ensure fairness on both sides of the issue. In addition, mediation is seen as a far less formal approach to settling legal disagreements. Mediation often includes fewer formalities, giving parties more leeway to express themselves without fear of repercussion. As was previously said, mediation is a private method of conflict resolution. Information may become accessible to the public in the course of a lawsuit if it is entered into the public record. With mediation, both parties agree to keep any and all talks private. It is expected that the mediator would behave ethically and with a duty of care by the parties and their representatives when the mediation process begins. Mediators often have the necessary expertise and experience to successfully mediate disputes between disputing parties. The mediator’s role is strictly facilitative; he or she will not take sides or impose a solution on the parties. Additionally, mediators do not decide who is in the right or wrong in a dispute.
The involvement of a neutral third party is another advantage of mediation. Having a third party who is not acquainted with the participants or the scenario may help ensure fairness on both sides of the issue. In addition, mediation is seen as a far less formal approach to settling legal disagreements. Mediation often includes fewer formalities, giving parties more leeway to express themselves without fear of repercussion. As was previously said, mediation is a private method of conflict resolution. Information may become accessible to the public in the course of a litigation if it is entered into the court’s records. With mediation, both parties agree to keep any and all talks private. It is expected that the mediator would behave ethically and with a duty of care by the parties and their representatives when the mediation process begins. Mediators often have the necessary expertise and experience to successfully mediate disputes between disputing parties. The mediator’s role is strictly facilitative; he or she will not take sides or impose a solution on the parties. Additionally, mediators do not decide who is in the right or wrong in a dispute.
Try as they may, neither side will be able to sway the mediator in their favour. While engaging in a mediation process has many upsides, there are some potential negatives that should be taken into account as well. Even if the positives still exceed the negatives, there have been isolated instances when mediation failed to help the parties involved. The mediator’s failure to exercise due care is a common source of harm to the parties during mediation. Secombs v. Sadler Design (1999) VSC 79 is a case that illustrates how a mediator might break the law by acting unethically (Secombs v Sadler Design, 1999). However, the client in this instance walked out on the mediation session before the terms of settlement were finalised. The client claims the mediation attorney was careless for neglecting to explain the conditions of the settlement and stress the repercussions of breaking the agreement. When the matter was taken to court, the judge ruled that the lawyer had breached the level of care expected of an average experienced attorney by failing to convey the terms of settlement after mediation had concluded. In light of the facts of this case, it is crucial that all compliance papers be thoroughly explained to the parties, both before and after the mediation, to ensure that the parties have a firm grasp of the information contained within. With the help of a neutral third party mediator, disputing parties may explore possible solutions to their problem and work towards a compromise. When both parties are committed to finding a solution to their disagreement, mediation may be an excellent method. Clients should have a favourable experience and a speedy resolution to their problem if the mediator follows established protocols. It is clear from the foregoing that mediation is an effective and suitable technique of conflict settlement between parties. 4

Articles discussing the benefits and drawbacks of mediation from Law Shelf Educational Media (2019). Advantages and disadvantages of mediation. Retrieved on December 15, 2019, from https://lawshelf.com/courseware/entry/advantages-and-disadvantages-of-mediation. QDC 150 (19 July 1999) Barrett v. Queensland Newspapers (1999). From http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QDC/1999/150.html?query=title on the 13th of December, 2019. (barrett%20% 20 and Author: Drews, M. (2008).
Four Different Approaches to Mediation Accessible at http://www.diac.ae/idias/journal/volume3no1/issue1/eng4.pdf as of 15 December 2019. Mediation (2019). Get it at https://www.fedcourt.gov.au/services/ADR/mediation (accessed on 14 December 2019)
The Federal Advisory Council for Alternative Dispute Resolution (1997). Questions of Equity and Justice in Conciliation and Mediation. Council for Alternative Dispute Resolution Methods in Australia. Canberra.
Case: Secombs v. Sadler Design Pty. Ltd., [1999] VSC 79 (24 March 1999). (1999). Accessed on the 13th of December 2019 from http://www.austlii.edu.au/au/cases/vic/VSC/1999/79.html.
Compare and contrast the benefits of mediation vs litigation. (2019). Advantages of Mediation over Litigation. Retrieved on December 12, 2019, from https://www.legalserviceslink.com/blog. That’s some serious Whatling, T. (2012).
Strategies and Skills for Mediating Conflict. Jessica Kingsley Publishers, London.