1. Is the system fair for both parties?
2. Situation under civil and criminal system?
3. Designing a better system?
4. Case involving unsatisfactory verdict?
5. Reason behind the judgment?
Alternative Dispute Resolution is the process in which the parties in litigation rely on a third-party who acts as a decision-maker to resolve the dispute in certain out of the court proceedings. Due to a fact that court cases have gone through roofs, Alternative Dispute Resolution has undergone a sea change and is gaining paramount popularity lately (Ware, 2001). This has seen widespread upheaval which certainly points that the system has procedural fairness and hence, parties are moving towards these mechanisms rather than filing litigation and going through the cumbersome proceedings.
1. Is the system fair for both parties?
As far as the fairness and just nature of ADR is concerned, it can be said that ADR is a method of resolving disputes in a consensual manner (Archives.gov, 2015). Here, the parties work with a third party who is neutral and is empowered to craft the dispute under his own expertise. Moreover, the costs of the litigation in ADR proceedings are substantially low and also, the regime under this system provides that none of the parties have to lose or forfeit their rights in the proceedings. Moreover, as we all know, ‘Justice delayed is justice denied’, ADR ensures a speedy disposal of the cases. Thus, it can be conclusively said that the system is fair for both the parties.
2. Situation under civil and criminal system:
The US Civil Code, establishes the mechanism of ADR and based on that code, various proceedings have been successfully applied throughout the federal constituency in various areas including Equal Employment Opportunity actions, Employment Actions, Performance Matters and other Workplace Related Issues (Mighty Laws Simplified..., 2011).
As far as the Criminal Law is concerned, ADR has seen a massive upheaval there as well. In the United States, ADR in criminal proceedings has a vital role to play. White J, in the case of Brady v United States, observed the validity of the concept and upheld its importance. Various programs like Victim-Offender Mediation Programs, Community Dispute Resolution Programs, Victim-Offender Panels, Victim Assistance Programs, Community Crime Prevention Programs etc have been designed under this head and they are running successfully (Mighty Laws Simplified..., 2011).
3. Designing a better system:
Although ADR is running successfully for the past many years yet, certain amendments can be made to the existing system. In order to design a better framework of ADR, the following changes can be incorporated in it:
- Initially, for criminal cases, ADR should have a codified law to prescribe the punishments,
- As far as the concept of precedents is concerned, ADR does not apply in those cases. Thus, this should be included at the earliest.
- Of late, the cost of proceedings in ADR has seen a steep rise and hence, efforts should be made to bring them down substantially.
- Enforcement of ADR panels should be made stricter so that the parties get no chance of defrauding each other.
4. Case involving unsatisfactory verdict:
An example of such a situation wherein the verdict given was not in accordance to the terms of the facts is that of McAuley v Raymond Kelly, 2013. The problem in the case was that the petitioner was a lady working with the New York Police. She was on duty when the Twin Towers Incident happened. It was decided by the ministry that all the personnel who were on duty during the incident would not suffer any superannuation loss or would not face any termination with regard to ailments that have a long term nature. But, the petitioner at a later stage was terminated because she displayed certain symptoms of cough and blood in her sputum and through urine. It was suspected that she was suffering from a chronic form of ulcer and thus, she was terminated from her service (Simanowitz, 2001).
5. Reason behind the judgment:
The ruling was given that she has contracted a communicable disease and hence her termination was essential. The researcher believes that this happened because the initial ruling regarding non-termination was given in a fit of the moment out of sympathy and the mental distress (Search.nycourts.gov, 2015). So, such an erroneous decision taken by the council is likely to have derogatory effects in future like it happened in this case. The petitioner unnecessarily was given a few expectations but later on, she was not allowed to enjoy those.
It is believed that these things should not happen in a working legal system because they decipher a wrong message about the smooth functioning and proper governance of the Alternative Dispute Resolution mechanisms.
Law of Contract
A contract is said to have been formed when one party offers certain thing to another party and the same is accepted by the other party. There are certain essentials of contract namely, offer, acceptance, consideration, legal capacity, consent and in appropriation of illegal and void contracts.
The offer must be made by one party and the same must be accepted by the other party unequivocally. This offer and acceptance is adhered to by either party when the element of consideration is present in the same. Absence of consideration makes a contract void. Further, it is also required that the parties who enter into the contract must be legally eligible to frame the contract. This implies that the parties must be mentally sound, of proper age and must not be prohibited to enter into the contract by law.
As far as ADR is concerned, while entering into any contract, the parties should make sure in the written agreement itself that in case if any dispute arises in the future, they would intend to invoke the arbitration clause in their agreement and not adhere to the law courts. Later on, in case of any future dispute regarding performance, breach or termination of the contract, the parties can take note of the arbitration clause and can move to the arbitrators to resolve their disputes. The proceedings through this medium are likely to be speedy and cheaper.
Archives.gov,. (2015). ADR - Alternative Dispute Resolution (RESOLVE. Retrieved 7 May 2015, from https://www.archives.gov/legal/adr/
Mighty Laws Simplified...,. (2011). Applicability of ADR in Criminal Cases.. Retrieved 7 May 2015, from https://www.mightylaws.in/430/applicability-adr-criminal-cases
Search.nycourts.gov,. (2015). Search Results: adr decisions. Retrieved 7 May 2015, from https://search.nycourts.gov/search?q=adr+decisions&btnG=GO&client=main_frontend&output=xml_no_dtd&proxystylesheet=main_frontend&sort=date%3AD%3AL%3Ad1&entqrm=0&oe=UTF-8&ie=UTF-8&ud=1&exclude_apps=1&site=Main
Simanowitz, A. (2001). Editorial: Alternative dispute resolution. Clinical Risk, 7(3), 108-108. doi:10.1258/1356262011928220
Ware, S. (2001). Alternative dispute resolution. St. Paul, Minn.: West Group.