The primary goal of an ideal civil and criminal justice system is the effective management of conflicts and just resolution of disputes through a fair but swift process at a reasonable expense in time and money. It recognizes the fact that delay and excessive expense invariably negates the value of an otherwise just resolution. Similarly, systemic delay and expense common in civil litigation and criminal proceedings render the system inaccessible. Even though there is no absolute measure of a reasonable expense, jurisdictions world over subscribe to the basic principle that the cost of resolving a dispute should be proportional to its magnitude, value, importance and complexity. These are the standards that market mechanisms seek to achieve in order to provide alternatives to civil litigation to the discontent of litigation lawyers.
Why We Think Differently
ADR practitioners and proponents of appropriate market mechanisms find reason in the assertion that it is not enough that the resolution of a dispute is fair. In addition to expedition and cost-effectiveness, two other considerations are vital to quality outcomes. To achieve quality outcomes, a sound balance must be struck between (a) a rights-based approach common in litigation; and (b) an interest-based and need-driven approach common in ADR.
While a rights-based approach (characteristic of adversarial judicial systems) strictly upholds the legal rights and obligations of the parties, as do arbitral proceedings, an interest-based and need-driven approach characteristic of negotiation and mediation aims at a just resolution of a dispute that meets the interests and needs of all parties. In contrast, an adversarial system of dispute resolution is not designed with expedition and cost-effectiveness in mind. To the contrary, it is designed to resolve conflict by a competition of adversaries. It is no wonder that delay, case backlogs and disproportionate costs of litigation are frequently cited as some of the main factors that impede effective resolution of disputes. In addition, the complexity of rules and the intricate architecture of the legal framework limits party control and sets the stage for legal counsel, whose adversarial approach to zealously champion the legal rights and downplay the corresponding obligations of their clients erodes the possibility of promoting and protecting the parties’ needs and interests. In the end, extensive advocacy is rewarded regardless of the outcome or value of the case. Accordingly, the judicial system fails on all counts to provide efficient and effective justice. If unchecked, arbitral proceedings are likely to go down the same bumpy lane.
The Invaluable Benefits of ADR
To appreciate the value of ADR in our dynamic world, one must internalize and subscribe to the following words:
“The obligation of the legal profession is…to serve as healers of human conflicts…. We should provide mechanisms that can produce an acceptable result in the shortest possible time, with the least possible expense, with the minimum stress on the participants. That is what justice is all about.” (Chief Justice Warren E. F. Burger of the US Supreme Court)
Granted, not all cases are suitable for mediation or other ADR strategies which, in any event, are voluntary. However, you will all agree with me that court litigation does not heal, but instead exacerbates, conflicts. In effect, legal counsel fail in their ordained duty to heal human conflicts in cases where they needlessly recommend and facilitate litigation. While recognizing the determinative authority of the Judiciary, ADR practitioners draw keen attention to market mechanisms best suited to facilitate the management of conflicts and resolution of civil and criminal disputes (a) expeditiously, i.e., in the shortest possible time; (b) with the least possible expense; and (c) with the minimum stress on the disputants. In the words of Chief Justice Warren E. Burger, “… that is what justice is all about”. Yet, the tendency among our learned fraternity has been to put tradition and financial considerations ahead of quality procedures and quality outcomes that serve to equalize the opportunity to access justice. Neither does the Judiciary place the deserved value on the emerging market mechanisms by citing ADR strategies as useful only for the purpose of mitigating case backlogs. It is in the spirit of these cherished outcomes that this post recommends a progressive shift towards an approach that balances legal rights and obligations on the one hand and needs and interests of the parties, and the community at large, on the other. Such reforms require review of sectoral policy and legislation to promote market mechanisms and community justice systems (including traditional dispute resolution mechanisms) to complement the conventional judicial system in the delivery of both civil and criminal justice.
If well thought through, this wholesome approach would equalize the opportunity to access justice and maximize inter alia (a) proportionality; (b) party control; (c) expedition; (d) quality procedures and outcomes; and (e) consumer satisfaction. Indeed, the need for the formulation and implementation of a judicial policy to guide pre-action and pre-trial protocols, and (ii) court-mandated ADR in the justice sector, cannot be overemphasized. The primary goal is to establish policy, legislative and institutional frameworks for the promotion of early dispute resolution, whether by adjudicatory, facilitative or evaluative means within the ADR spectrum.
The writer subscribes to the inspiring words of Sandra Day O’Conner (an American Judge), who had this to say respecting the critical role of ADR strategies in the justice system:
“The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving ‘disputes have been considered and tried.”
What We Do
Premier ADR Consultants work hand-in-hand with entrepreneurs and marriage mates with strained business or marital relations on the verge of breakup or separation to resolve their disputes by means of our transformative conflict management and dispute resolution strategies. We help parties salvage, restore and maintain healthy business and family relationships in a safe and peaceful environment with guaranteed privacy and confidentiality.
Our expeditious, cost-effective and party-controlled techniques guarantee consumer satisfaction resulting from the voluntary and jointly generated win-win outcomes. We provide the best alternative to the all-familiar costly, time-consuming, adversarial and often emotive court litigation that only works to weaken and ultimately destroy business, marital and family relations.
You can learn more by visiting our website at www.adrconsultants.law and like our Facebook page for our weekly posts and monthly newsletter.
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