ADR Alternative Dispute Resolution Through Thesis
- Length: 7 pages
- Subject: Business - Law
- Type: Thesis
- Paper: #41357910
Excerpt from Thesis :
Both parties present evidence to a neutral party. However, the neutral party acts as a mediator, not simply as a finder of fact. The neutral attempts to help the parties settle the dispute based upon the neutral's evaluation of the case. The mini-trial suffers from the same drawbacks as the summary jury trial. However, its greatest strength is that, once the neutral has shown both parties their likelihood of success in litigation, it places them in a more realistic position and may make them more open towards a successful settlement.
One of the biggest barriers to ADR is that the opposing parties have taken positions that they believe are intractable, so that they feel as if they cannot enter into a bargaining position with the other party. However, when one looks at ADR in its largest and most significant format, it becomes clear that ADR can work even with parties who are hostile to one another and who do not seem capable of compromise. For example, when one considers negotiations between countries or in the context of a civil war, it becomes clear that one important ADR technique, negotiation, can be very helpful in those situations. According to Pugh, when discussing the viability of ADR-linked peace processes to end civil conflict, those processes have the highest chance of success when:
indicators of ripeness lead to recognition by all parties that a mutually hurting stalemate exists; committed and employers policy entrepreneurs on both sides can take advantage of revised expectations in order to make realistic proposals and meaningful reciprocal concessions; internal and external pressure for a political settlement raises the costs of defecting and abandoning the negotiations and demonstrates that delay will result in increasingly higher costs to the parties; and a third party offers both verification of agreement to overcome the mutual distrust of the parties and technical assistance to help craft workable proposals. (Pugh).
If that process can work between opposing sides in a war, it seems clear that ADR can work in smaller-scale conflicts.
Another factor that ADR neutrals and others involved in the ADR process must consider is that individual litigant personalities play a major role in the ADR process. For example, in their study on adolescent coping strategies, Ben-Ari and Hirschberg found a strong positive correlation between attachment style, coping strategy, and conflict perception. What this means is that some people, due to their attachment styles, which are generally non-changing, may perceive different levels of conflict than others with different attachment styles would perceive. In short, personality can have a major impact on how a party perceives a dispute, and, in turn, on how likely that party is to settle the dispute. Therefore, ADR neutrals need to be aware of the influence that personality can have on settlement possibilities, and attorneys need to be able to manage their client's personalities in the ADR process if settlement is in the client's best interest. The relationship between individual personality and the course of a negotiation can also be significant. It has long been recognized that certain events in negotiations, referred to as turning points, can have a dramatic impact on whether or not a settlement is reached. (Druckman, Okekalns, and Smith). Across the board, parties are less likely to move towards change in positive social climates, which are characterized by low power, high trust, and cooperative orientations. (Druckman, Okekalns, and Smith). Knowing that the climate of the negotiation can impact the outcome, and that personality can impact the climate, it seems clear that personality can impact the outcome of ADR.
There is no doubt that ADR has become a significant means of dispute resolution. However, there is some question about whether ADR is leading to an increase in settlements, or whether the perceived success of ADR actually reflects conflicts that would have settled anyway. After all, it is impossible to tell how many disputes are settled through the informal method of ADR, negotiation, long before either party even considers filing suit. Even more difficult is the fact that there is no organization tracking the nationwide results of ADR. Collaborative law tools like mini-trials may not even be formally recognized in some reporting mechanisms. However, the numbers that are available tell an encouraging story about ADR. For example, in the Georgia Southern Judicial District, ADR leads to settlement in 86% of domestic relations cases, 94% of general civil cases, and 58% of state civil court cases. (Southern Judicial Circuit). While not all jurisdictions reflect such high settlement rates, what is clear is that when a jurisdiction's ADR program is good, it can prevent litigants from having to go into court. While this may not reduce the financial burden on the courts or even on litigants, the fact that people report being more satisfied with the results of ADR than litigation makes ADR worth pursuing in the future.
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