Introduction
Majority of people and businesses are likely to be involved in disputes at some point in their lifetime. Disputes follow directly from unresolved conflicts. Conflicts are an unavoidable element of human interactions, and the society has responded by developing innovative and efficient methods of solving conflicts. Conflicts reflect the uniqueness in every person, whereas conflicts are inevitable they need not result into disputes. Alternative Dispute Resolution methods refer to several approaches to resolving conflicts without confrontations between parties involved.
The methods may include negotiation between parties through consensus building, mediation, to adjudication and arbitration. Different approaches to conflict resolution are now widely accepted in many countries, and they are effective ways of managing conflicts and mitigating disputes. Successful resolution of conflict can create productive relationships with key stakeholders in the business whenever the parties involved in a conflict reach a win-win agreement. The current dispute involves the vendor of glass paneling, Trustee in Bankruptcy of a Builder, and myself as the owner of a commercial development site.
The Dispute
I am the owner of a commercial development site, and my builder ordered $ 600,000 of glass paneling for the facade. Already $300, 000 of glass paneling has been installed while the remaining $300, 000 is held at the site’s storage facility. I have paid the full amount through my builder but a dispute arises over ownership of the glass paneling between the vendor of the glass paneling, the builder’s Trustee in Bankruptcy, and myself. In solving the dispute, there are different mechanisms and methods (alternate dispute resolution and or court systems) available. The essay provides critical analysis of all the mechanisms and methods available in resolving the dispute.
Alternative Dispute Resolution
Alternative Dispute Resolution (ADR) is a term used to refer to various approaches and techniques for resolving disputes without confrontations. Alternative Dispute Resolution has received increased attention in both the commercial sector and the field of law alike. ADR approaches are, by design, cost effective and less involving alternative to the litigation process. In 1980s and 1990 majority of people were concerned over the expensive, long, and tiring process of solving civil disputes.
The methods aim at addressing the inadequacy of and costs associated with the court system. The primary goal of ADR is to resolve disputes at reduced cost and time. ADR requires coming up of other ways of resolving civil disputes asides from litigation. ADR procedure is less complicated than the court procedure, are recommended to reduce the number of cases in courts and a cheaper form of justice. ADR provides the most appropriate remedy to a dispute based on the prevailing situation and at the same time leave all parties in the dispute in a win-win situation (Shamir & Kutner, 2003)
Alternative Dispute Resolution is an Umbrella term for different approaches that differ by design and in their application. They provide viable alternatives to the traditional dispute resolution in courts. Even if some techniques are widely used, ADR does not have a fixed definition.
A wider definition of the term implies that any process of solving a conflict where parties go through negotiations before engaging in a formalized legal process is an ADR technique. ADR results into a quick, flexible, and acceptable solution to all parties involved in a dispute. Conciliation, mediation, arbitration, mediation-arbitration, minitrial, early neutral evaluation, and summary jury trial are the main ADR techniques to litigation (Barrett and Barrett, 2004).
Statute and Regulation
Beginning late 1980, the United States Congress acknowledged that ADR is a less costly and effective approach to resolving disputes. The Congress enacted the Judicial Improvements and Access to Justice Act, 28U.S.A. § 652 (1993 & Supp. 2003) in 1988 that authorized district courts to present disputes to arbitration. The Congress in 1998 amended the Act by enacting the Alternative Dispute Resolution Act of 1998, Pub. L. No. 105-315, 112 Stat. 2994 (28 U.S. C. A. § 652), which requires district court to oblige local litigants in every civil case to employ an ADR approach appropriate to the state of litigation (Lubbers, 2010).
District courts local rules provide for a wide range of ADR techniques. The Western District of Texas District Court in U.S. provides for arbitration, summary jury trial, moderated settlement conference, mediation, and minitrial as acceptable ADR approaches. In line with the W.D. Tex. Loc. R. CV-88 rules, the court may order ADR on agreement of all parties, on the motion of one of the parties, or on court’s motion. Majority of district courts in the Unites States operate on similar rules.
The Congress has further provided for ADR through several other statutes. For example, The Board of Directors of the Office of Compliance mandated with reviewing Congress employees complaints may order halting of the mediation process under 2 U.S.C. A. § 1401 (1997). Legislatures at the State level have put in place similar statues to provide for ADR. For instance, judges in Florida have the authority to submit different cases to mediation or arbitration under Fla. Stat. § 44. 1011 (1997) (Lubbers, 2010).
The Commissioners on Uniform Laws have passed various laws related to ADR proceeding that various states may adopt. Forty-nine states have adopted versions of Uniform Arbitration Act, first approved in 1956. Uniform Mediation Act drafted in collaboration with American Bar Association’s Section on Dispute Resolution in 2001 put in place provisions for confidentiality and privileges in mediation.
It is common for courts to uphold decisions made during ADR proceedings. For example, The U.S Supreme Court reviewed a decision in which the Ninth Circuit Court of Appeals overturned the decision by an arbitration panel on a contract dispute complaint by Steve Garvey. In Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 121 S. Ct. 1724, 149 L. Ed. 2d 740 (2001), the Supreme Court held that it was the mandate of a court of appeal to resolve disputes on its merits (Lubbers, 2010).
Mediation
Mediation is one of the simplest ADR techniques. Mediation is voluntary though in some states parties in a dispute maybe required to mediate prior to proceeding to trial. Mediators who are neutral individuals trained in negotiation facilitate mediation. The mediator brings all parties together and through dialogue try to come up with a solution to the dispute agreeable by all parties.
The mediator does not oblige the parties into a solution in line with US mediation code of conduct that stresses on client-directed solutions. The parties in conflict do not necessarily need to come face-to-face with other rather the mediator by exercising “shuttle diplomacy” acts as a link between the parties (Clark, 2012).
The success of the mediation process depends on the willingness of the parties to negotiate an appropriate solution to their dispute. The parties must agree to participate in productive discussion of what are their interests, objectives, available options, and anticipated solutions. Negotiation skills of the mediator have a direct impact on the ability of the parties to reach an agreement. Requirements for mediation practice in United States vary from state to state with some states requiring mediators to have particular licenses, training, and additional education (Clark, 2012).
Conciliation
Conciliation follows the same process as mediation with the difference traced to the role of the conciliator. The conciliator participates in the negotiation between parties actively and even offer views on a case brought forward. The conciliator holds two private meetings with the parties in the dispute. If the parties fail to agree, the conciliator recommends the best way to solve the dispute (Ramus, Birchall, & Griffiths, 2006).
Arbitration
Arbitration is accepted worldwide as quick and cheaper approach to solving disputes other than going through the court process. In United States, parties arbitrate upon agreeing to do so. There are two types of arbitration agreements; the first type of agreement is effective after parties enter into an agreement with an arbitration clause, while the second type of an agreement occurs after a dispute has come up and the parties in the dispute come into a consensus that the dispute will be resolved through arbitration. After the parties agree that the dispute will be resolved through arbitration, they choose arbitrator(s). Parties have to agree on an arbitrator, or each party to choose an arbitrator, the two arbitrators then chose a third arbitrator to form a panel.
Arbitration follows the same procedure as a trial, but it is simplified. After the hearing, the arbitrator(s) comes up with a final decision. A discontented party can file an appeal though it is rare for a court to overrule an arbitration decision. Arbitration is a common ADR procedure in the business context (Uhle, Kirchhoff, & Scherer, 2006). The United States Arbitration Act of 1925 (USAA) enacted agreements to arbitrate with minimal limitations. If the validity of an arbitration clause is in dispute Supreme Court of the United States case of Rent-A-Center, West, Inc. v. Jackson applies (Lubbers, 2010).
Mediation-Arbitration
As the name suggests, mediation-arbitration integrates mediation and arbitration. The process starts with mediation where a mediator attempts to get the parties to coming up with their own solution. If the parties fail to agree, they then move on to arbitration. The mediator may still become the arbitrator, or a different third party gives a final decision binding on all parties.
Minitrial
Minitrial as an ADR approach and is receiving attention in solving extensive disputes involving in-depth questions in law and facts. Each party during minitrial presents their case as in a normal trial but the difference is the parties the trial is conducted by the parties themselves, and presentations are summarized. Experts and lawyers make a presentation of a summarized version of the case to the top management. In most cases, an expert conducts the hearing after which the top management representatives go into negotiations to come up with a solution.
The representatives enquire from the expert what is the most probable outcome of the case if they fail to come up with a solution. Participation of top management of both parties and exchange of information during the trial determine the effectiveness of a minitrial. A minitrial exposes the dispute as it would appear during a court trial and as such opt for a compromised solution (Ramus, Birchall, & Griffiths, 2006).
Early Neutral Evaluation
The approach is applied when parties in a dispute seek the advice of an expert in the matter on what are the strengths and weaknesses of their case. The advice influences the parties to adjust unrealistic solutions through insights from an expert who in most cases is an attorney. The willingness to comprise and parties’ trust in the selected expert determine the success of the approach (Kiser, 2010).
Summary Jury Trial
Federal courts in most cases apply summary jury trials where they give parties in a dispute an opportunity to try their case in a summarized form before jurors who after deliberation give Advisory Opinion. The Advisory Opinion helps the parties in dispute to identify the strengths and weaknesses of their case to aid settlement of the dispute. In cases where evaluation leads to settlement of the dispute, parties in the dispute avoid court delays, expenses and anxiety in litigation (Carper, McKinsey, & West, 2008).
Court System: Litigation
The United States has put in place common law adversarial system for dispute resolution that defines the civil procedure. The procedure is known as litigation, which is a long and costly process, which has led to many parties opting for Alternative Dispute Resolution procedures. Litigation process follows civil procedure rules. Federal civil procedure rules govern Federal courts while state courts have their civil procedure rules.
Civil procedures rules are different in various states and even in courts with the same jurisdiction. It is important for parties to be familiar with rules because they define the litigation process and they set time limits for filing pleadings and trials. Litigants on their own or through their attorneys must follow the set procedures for their trials to proceed. After the plaintiff files a complaint detailing the facts of the dispute, the suit proceeds on trial if the parties fail to settle the suit. Parties may file an appeal after a judge or jury has made a final decision (Subrin, & Woo, 2006).
Settling the Dispute
The current dispute is on ownership of glass paneling. The parties involved are the vendor of the glass paneling, the builder’s Trustee in Bankruptcy, and myself (owner of commercial development site). The owner of a commercial building site through the builder has already paid the full amount for the glass paneling.
Half of the glass paneling is already installed while half is at the site’s storage facility. The case is an interaction of law and facts to who is the actual owner of the glass paneling. Given the complexity of the dispute, Early Neutral Evaluation is an appropriate procedure to solving the dispute. The method is preferred to litigation due to costs and time involved in settling a dispute.
However, the three parties must agree to the procedure as their preferred alternative dispute resolution procedure. The goal of Early Neutral Evaluation is to facilitate direct communication between the parties on their claim and the evidence they have. The neutral party helps the disputing parties to clarify the core issues in the dispute and upon request from the parties, coordinates settlement decisions (Carper, McKinsey, & West, 2008).
The three parties in the dispute will settle on an appropriate attorney who will help the three parties involved in the dispute identify the weaknesses and strengths of their case. The neutral party who is the attorney will arrange for a schedule for the exchange of the initial statements. The initial statement describes the dispute, the parties develop a critical view of damages and liabilities, present crucial evidence to the neutral party, and any other information they deem important to the attorney (Kisser, 2010).
The attorney will be very instrumental in informing the stand that each of the three parties will take in regard to the current dispute. Given that the success of the process is dependent on the confidence the parties have in the neutrality of the attorney, all parties will select the attorney upon agreement. The credibility of the attorney is very important to ensure objectivity throughout the process. The evaluator has no power to force a decision because the right for trial is preserved under the law. If the parties fail to reach a settlement then the case moves on through litigation.
Conclusion
The essay began by stating that disputes are bound to happen among people and businesses. Since conflicts are unavoidable, the society has developed several methods of solving problems. Alternative Dispute Resolution procedures present viable alternatives to the long and costly litigation under the court system. ADR procedures aim at solving disputes without confrontation as it is the case with court procedures. The essay highlights the concept of Alternative Dispute Resolution and the statutes and regulations in United States. The essay establishes that ADR is widely accepted concept in the field of law and business.
Mediation, conciliation, arbitration, minitrial, early neutral evaluation, and summary jury trial are some of most common ADR procedures in United States. The dispute at hand is on ownership of glass paneling between a commercial building site owner, the vendor of the glass paneling, and the Builder’s Trustee in Bankruptcy. The dispute represents interplay of law and facts. Early Neutral Evaluation is the best procedure for the specific case because through expert advice the parties can settle the dispute while their right for trial is preserved. If the parties fail to reach a settlement then they can go through litigation. An ADR procedure is preferred to protect business relations.
References
Barrett, J. T., & Barrett, J. (2004). A history of alternative dispute resolution: The story of a political, social, and cultural movement. Hoboken: John Wiley & Sons.
Carper, D., McKinsey, J. & West, B. (2008). Understanding the law. Mason, Ohio: Thomson/West.
Clark, B. (2012). Lawyers and mediation. Berlin New York: Springer.
Kiser, R. (2010). Beyond right and wrong the power of effective decision making for attorneys and clients. Berlin London: Springer.
Lubbers, J. S. (2010). Developments in administrative law and regulatory practice. American Bar Association.
Lubbers, J. S. (2010). Developments in administrative law and regulatory practice. American Bar Association.
Ramus, J., Birchall, S. & Griffiths, P. (2006). Contract practice for surveyors. Oxford Burlington, MA: Butterworth-Heinemann.
Shamir, Y., & Kutner, R. (2003). Alternative dispute resolution approaches and their application. Unesco.
Subrin, S. & Woo, M. (2006). Litigating in America : civil procedure in context. New York: Aspen Publishers.
Uhle, C., Kirchhoff, L. & Scherer, G. (2006). Arbitration and mediation in international business. Alphen aan den Rijn, the Netherlands Frederick, MD: Kluwer Law International Sold and distributed in North, Central, and South America by Aspen Publishers.