Alternative dispute resolution (ADR) involves the use of other methods, aside from litigation, to resolve disputes. ADR has gained momentum in the legal arena because it is not only swift, but also saves the disagreeing parties the trouble of appearing in court and spending a lot of money in litigation fees. It provides confidentiality, though under certain circumstances, individuals take advantage of the process to select individuals who in will decide the dispute in their favor (Radulescu 138). The categories of ADR include conciliation, mediation and arbitration. However, this paper looks at mini-trial and rent-a-judge as various categories of ADR.
Arbitration involves presenting an issue before a judge or any other party that will make a ruling. The process commences when both parties agree to settle out of court. An arbitration contract states that all parties must provide an informed consent of the same. In the event that there is an incidence of fraud in the contract, it fails to be a binding document. In addition, obtaining consent through duress invalidates the arbitration contract. The basic principles of arbitration are that the dispute has to be resolved fairly by an impartial third party without causing financial strain upon the litigators. In addition, no court is allowed to interfere in this process. The advantages of arbitration are its ability to allow for convenience of the litigators, the guaranteed privacy and confidentiality of the aggrieved parties and the varied choice of decision makers. The major disadvantage is that the parties may decide to avoid the terms of the resolutions, with the citation of unfairness.
Mini trials are a form of mediation. As a consequence, the outcome of a mini trial is not legally binding. The only difference between mini trials and mediation is that in mediation, the third party (the mediator) is neutral and they can only give recommendations on what is to be done. In a mini trial, the mediators are representative of the parties, and they work out settlements after weighing the views on both sides. In mini trials, the parties represented rarely give their views, because they perceive matters subjectively and not objectively. The representatives have better experience and are better placed to argue out cases. However, the downside to this is that it can only happen after a formal litigation has been lodged (Radulescu 137).
Mediation involves the use of third parties to sort out disputes. All participants are fortified to partake in the decision-making progression. The mediator is at will to explore the various methods of conflict resolution. It also involves analyzing the various norms related to the participants and refraining from offering advice. The parties are at liberty to decide which course of action to take after a decision is made. It promotes control of the entire process and mutuality between the respective persons. In addition, persons from whichever profession are able to use mediation to resolve conflicts (Radulescu 137).
The rent-a-judge trial involves paying a judge to settle cases. The rented judges are mostly retired judges who have the experience of presiding over actual trials. This form of ADR is considerably affordable because it is only the judge who receives a small fee for services rendered. Most companies use these judges to offer help to their clients. The process is cheap and consumes a little time. The disadvantage is that these judges may be rented by unscrupulous individuals to make decisions that are unfair.
Negotiation is the most commonly used method of dispute settlement. It involves the two parties working out their own differences to attain a common goal. However, in most cases, it is only one party that gets the benefits of the negotiation. All conflicting parties have to make concessions in order to reach an agreement. Negotiation occurs in both personal and business aspects. The standard issue is that without an agreement, the entire negotiation process is a fail (Radulescu 137).
Radulescu, M. D. (2012). Alternative Dispute Resolution. Romanian Statistical Review Supplement, 60(1), 133-140
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