法律课程作业：替代性纠纷解决 Alternative Disput Resolution

Introduction引言

法律是具有审判意义的专门为公民解决纠纷和矛盾的工具，在法学中，随着时间的推移，法学专家们一直在研究除诉讼之外的其他方法，这可能是解决纠纷的最有效和合理的运用。这样的方法之前在美国夏威夷律师协会的年度惯例会议中，于1989年进行了一次审议。
Law as a science has explored various ways of solving disputes, and for centuries the most effective and the most popular way of solving disputes was going to court and having a formal trial. As the time went by, scientists kept on studying other methods rather than litigation, which could be effective and justified in solving disputes. Such methods were closely examined by The American Bar Association, which held its usual annual convention on Hawaii in 1989.

当时那场会议专门讨论了“解决太平洋纠纷的途径”这一案例，它吸引了众多参观者。该公约在这一年会后成为“替代性纠纷解决”诉讼的重要替代品，并沿用至今超过十五年。
That time convention was devoted to “Resolving Disputes in Pacific Ways”, and it attracted many visitors. More than fifteen years after the convention such a concept as “Alternative Dispute Resolution” became an important substitute of litigation. For many years it has been explored and debated. It took a significant place in the reports concerning new ways of dispute resolution all over the United States. Alternative Dispute Resolution comprises more than ten methods, which are “alternatives to litigation as a means of dispute resolution” [1]. A person, who decides not to have a formal trial but refers to ADR companies, has always a choice, concerning which method of solving the dispute to use. Usually ADR costs less than having litigation, thus it appears to be more attractive to people, who do not possess much money, than having a full and formal trial. Despite of the fact that ADR is less formal than litigation, it does result in compromise between the parties. ADR is confidential and it offers personal treatment towards every client.
 

The current study was designed to explore the essence of Alternative Dispute Resolution, its peculiarities and advantages as compared to other methods of dispute resolution. The paper will focus on various types of ADR, including mediation, negotiation, conciliation, arbitration and others, which are used to resolve disputes. Pros and cons of every type of ADR will be also discussed.

 

The essence of Alternative Dispute Resolution替代性纠纷解决的本质
 

Due to the increasing costs to pay for litigation and the growth of court congestion, individuals as well as whole companies slowly but steadily are starting to turn to alternative dispute resolution in order to solve their disputes. The term “ADR” stands for the set of methods by means of which legal conflicts and various disputes are solved outside the courtroom. Usually ADR is less formal than litigation, but it does include the presence of the third party to preside over the hearing between the two disputing parties. It is also less expensive and not so time-consuming. The specialists working at the Centre for Effective Dispute Resolution (CEDR) gave the following definition to the term ADR: “A body of dispute resolution techniques which avoid the inflexibility of litigation and arbitration, and focus instead on enabling the parties to achieve a better or similar result, with the minimum of direct and indirect cost” [7]. As it has been mentioned above there are different methods used in ADR, and each of them possesses certain characteristics. However, it is possible to identify certain characteristics that are peculiar to the whole process of ADR. The first characteristic feature of ADR is that it deals with all disputes confidentially, meaning that process of dispute resolution and its outcomes are usually kept in secret unless it falls under certain circumstances when it has to be revealed by a special law. ADR is more flexible than usual litigation. It leaves the room for creativity and cooperation in order come to a common solution and to meet the requirements of both parties. ADR gives a possibility to gain more control over the process of dispute resolution. It involves personal communication of all parties, who might be working or living together after the process ends. Thus, it maintains the existing relationship, by using methods that encourage people to cooperate in order to reach an agreement. Often it leads to the improvement of relationship and elimination of further conflicts. ADR establishes certain rules that govern the process of dispute solving. Methods of ADR involve third parties’ presence, so-called neutrals. Generally, the process of ADR is not so expensive in comparison with litigation, and it is shorter in time as court proceedings are much more complex. ADR grants a feeling of personal satisfaction to the parties, as they take a more active part in the process and can decide themselves, which method of ADR to use. ADR helps to reach the compromise between the parties, while litigation results only in satisfaction of one party. And the last characteristic feature is the following, by means of ADR it is possible to get to the root of a problem due to the use of personal approach. In ADR the decision-making is the responsibility of the disputing parties or the neutral. Though ADR has many obvious advantages as compared to usual litigation, there are some cases, which cannot be solved by means of ADR. For example, the cases of violence, when courts are able to provide better protection for victims of violence, or the cases when one of the parties possess two much power. Also, ADR is improper when “one of the parties wants the issue to be publicized or wants the outcome to be seen as an example for other similar disputes” [10]. Such a desire goes against usual practice of ADR. ADR cannot be used as the means of dispute resolution, when the outcome may influence a great number of people, “where there is a need to establish precedent”[10] and “where a definite and broadly applicable solution is required”[10]. Court proceedings are more effective for above mentioned cases.

 

There is a great variety of disputes as well as great variety of methods to handle them. Legal practice has shown that usual forensic methods of solving disputes are not always the best at solving disputes. ADR offers a whole range of methods, out of which the most suitable one can be chosen. Thus, the abbreviation expansion of ADR has slightly changed, and the word “alternative”, for which letter “A” stands, was changed into “appropriate”. Indeed, methods used in ADR are appropriate for various disputes, including family, business, governmental and other disputes.
 

Having spoken about the essence of ADR and its peculiarities, it is necessary to explore various types of ADR, including: ombudsmen, conciliation, negotiation, mediation, arbitration, adjudication, early neutral evaluation, expert determination, med-arb and med-rec.

1. Ombudsmen are specialists, who are trained to examine and solve complaints concerning public and private matters. Ombudsmen use a number of methods to solve disputes, among which are “counselling, mediating, conciliating, and fact-finding” [4]. After receiving a complaint, ombudsman starts to interview the parties and examine the files; however, ombudsmen do not pronounce judgment or solution. All ombudsmen should be independent of the disputing parties. Normally, ombudsmen do not “consider a complaint unless the organization or company has first been given a chance to deal with it through its own internal complaints procedure” [9]. Ombudsmen do not have a power to impose a solution; however, they should have an ability to persuade the parties to agree on their recommendations. Services of ombudsmen are limited as the disputing parties are required to reach an agreement with certain period of time (six – twelve months). At first an ombudsman would try to resolve the conflict informally, otherwise, he/she would have to conduct the investigation and issue a report with his/her own conclusion.
 

2. Conciliation is the process, during which a conciliator (a third party or a neutral) builds positive relationship between the disputing parties in order to solve the dispute. “A conciliator may assist parties by helping to establish communication, clarifying misperceptions, dealing with strong emotions, and building the trust necessary for cooperative problem-solving” [4]. Conciliator may choose a neutral place for meeting, carry messages between the parties and assure parties that they are able to communicate and work together. Conciliation helps the disputing parties to start a dialogue, to build positive attitude towards each other and to enhance trust. There are three characteristic features concerning conciliation. The first one is that this process is totally voluntary. It is absolutely private and confidential. After conciliation the parties may or may not agree on the resolution. In his turn conciliator may meet each of the parties together or separately, or may not meet them at all and announce the resolution by phone or other mean of communication.
 

3. Negotiation is probably the most fundamental method of solving any dispute, which is used more often than others. However, it does not mean that this method is the most effective. Everything depends on the type of disputes. If the parties are willing to communicate, this method will definitely work, if not other method should be chosen. It can also be the quickest and the cheapest way to resolve a dispute. As the means of ADR, negotiation can be done directly between the parties or with the help of their representatives. The main goal of negotiation is to reach an agreement. There are two types of negotiation: assisted negotiation, when a neutral is chosen, and non-assisted negotiation, when the parties seek a solution themselves.#p#分页标题#e#
 

4. Speaking about mediation it is important to note that it is very similar to assisted negotiation. Mediation is a process of resolving a dispute by means of third party intervention. A mediator (a neutral or a third party) works with a single objective to help the parties reach an agreement. Mediation works effectively in “highly-polarized disputes where the parties have either been unable to initiate a productive dialogue, or where the parties have been talking and have reached a seemingly insurmountable impasse” [4]. A mediator is not authorized to make any decisions or impose solutions, however, he/she may suggest certain ideas how to improve the relationship between the parties. Sometimes mediators work with each party separately. There are several distinguishing features of mediation, such as mediation is absolutely voluntary. No parties are under obligation to take part in mediation. As any other type of ADR, mediation is private and confidential. It is up to parties, but not a mediator, to make the decision and resolve a dispute. The most important feature is that a mediator should be impartial, independent and have no personal interest in the outcome. Mediation is often used to solve disputes over divorce and separation, business claims, consumer disputes, small claims and others. Despite of the fact that mediation is a rather effective method, there are some cases when other methods of solving disputes need to be used.

 

5. Arbitration is a “private dispute resolution process where disputing parties agree that one or several individuals can make a decision about the dispute after receiving evidence and hearing arguments” [5]. It is obvious that arbitration is different from the types of ADR discussed above, as it involves the decision-making process conducted by the third party. Generally speaking, arbitration is similar to a formal trial. Both parties present their statements at first, and then the arbitrator examines evidences and announces the decision. However, arbitration is done faster and not so formally. When the arbitrator announces the award, he/she may or may not also give the reasons for such a decision. As any other type of ADR arbitration is private and confidential. Before the arbitration starts both parties have to agree to participate in it. Usually the process is legally binding (binding arbitration), meaning that the decision is obligatory to both parties according to the law. Arbitration hearings are less formal than formal trials, and sometimes hearings are not even necessary, as the dispute can be resolved with the help of documents only. An arbitrator should be a professional lawyer or an expert in a specific area of law. In some cases if the parties cannot choose and arbitrator, he/she can be chosen by a competent company. All of the arbitrators should be neutral and have no interest in the outcome of the dispute.
 

6. Adjudication is a type of ADR, which involves the judge or a specially trained third party, who is considering the opinions of both parties, examines the facts and makes the decision concerning the ways how to resolve a dispute the best way. It is similar to other types of ADR in terms of third party’s neutrality and independence. However, unlike other types of ADR, adjudication is “an involuntary, adversarial process” [3]. The decision made by the third party is binding for every party, thus, adjudication is very close to usual trial rather than mediation or negotiation. Usually after adjudication as well as arbitration there is one party, who won the dispute and another one, who lost it.
 

7. Early neutral evaluation is another type of ADR, which is used to provide the parties with more information concerning their dispute. For this reason an impartial third party or neutral is chosen to examine the peculiarities of the case by studying written statements of both parties. A third party evaluates the situation and announces strong and weak sides of the case. Sometimes oral presentations are done by the disputing parties in order to feature position of each party. Early neutral evaluation helps to avoid going to court and having a formal trial. It is used “when the parties disagree significantly about the value of their cases and when the top decision makers of one or more of the parties could be better informed about the real strengths and weaknesses of their cases” [4]. It is also a good way to avoid large expenses of litigation.
 

8. Expert determination is used to resolve not very complicated disputes, when both parties agree to choose an expert to assist. An expert (a third party) in his turn agrees to follow certain rules, including: to “adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay and expense, so as to provide an expeditious cost-effective and fair means of determining the dispute” [8], to be impartial, fair and to keep the process confidential, and to allow the parties both take part in the process. Before the expert starts to work, the parties have to agree that the decision he/she will make is binding for all parties.
 

9. Med-Arb is a one of the mixed process used in ADR. It is a combination of mediation and arbitration. At first the parties take part in mediation with the mediator trying to solve the dispute and guide the parties until they come to a common decision. In cases when the parties are unable to reach an agreement, mediator changes the process into arbitration and becomes an arbitrator. Parties may agree to continue the process or may wish to select another arbitrator to continue. The biggest advantage of med-arb is that a mediator can perform a function of arbitrator better than another neutral, as he/she is already aware of the peculiarities of the dispute. It is especially effective for conflicts between employers and employees.

10. The last type of ADR to speak about is Med-Rec, which is a mixture of mediation and recommendation. The process of resolving a dispute starts as mediation, however, if the parties do not reach an agreement, the mediator “makes a recommendation to the court or other decision-maker as to a recommended resolution” [6].

 

Speaking about career outlook in the field of ADR it is necessary to emphasize that it is becoming widely accepted and popular to use ADR methods instead of going to courts. Thus, this field is an excellent area, where new specialists in law can find good jobs. This is a result of constantly growing prices for litigation to the level when parties prefer to choose something alternative rather than going to court, paying a huge amount of money and waiting until the process ends for a long period of time. Nowadays, ADR is already supported by the government, so there are vacancies not only at private companies, but also at state courts. There is a growing need for mediation among the population due to the growing number of divorces and small disputes between the parties. It is a developing area of business, and as any other business it requires high quality of judging, competence and persistence. It might be hard for a young lawyer to find clients for mediation, as more experienced retired lawyers attract more clients. Thus it might be sensible to gain some experience by working at regular courts before going into ADR. However, if a person possesses certain skills in working with people and solving disputes, if he/she knows not only law but also human psychology and sociology, it is highly probable to become a successful mediator or conciliator by establishing reputation, which would attract people.

 

Having spoken about career outlook in the field of ADR I would like to choose a type of ADR that would be most suitable for me. There are some types of ADR that look very similar, thus, such types of ADR as mediation and negotiation seem the most attractive to me. There is a growing need for mediators not only in family or social disputes, but also in business disputes, which involve employers and employees, business partners and companies acting as disputing parties. The combination of mediation and arbitration also seems an interesting type of ADR to pursue a career in. It requires more skills to have to be a mediator and arbitrator at the same time, thus, the supply for such a kind of job will not be too significant. So, it would be easier to receive such a job, which would, besides, pay more money since a specialist in this area is supposed to fulfil two functions simultaneously.

 

Conclusion结论

As it can be seen from the information provided above, there are various methods used to resolve disputes between people. Nowadays, court proceedings are very time-consuming and expensive, which makes the people look for something alternative. Alternative Dispute Resolution and its methods appear to be an effective means of resolving disputes. These methods are less expensive, confidential and not so time-consuming; and they get much closer to the root of problems that need to be solved. Besides, the main goal of the majority of types of ADR is to improve relationship between the disputing parties, to help them reach an agreement. This is what distinguishes ADR methods from usual litigation. There can be only one winning party after a court trial, while after conciliation, mediation or negotiation all parties can be considered as winning, because there is no conflict between them any more.

 

The list of used resources资料来源

1. Mackie, Karl J. 1991. A Handbook of Dispute Resolution: ADR in Action. Routledge.

2. Maclaury, Judson. 2005. Alternative Dispute Resolution. Monthly Labor Review, Vol. 128.