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EVERYDAY LAW: On alternative dispute resolution


Cecil McCarthy

EVERYDAY LAW: On alternative  dispute  resolution

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Last month at the invitation of the Barbados Association of Office Professionals I delivered a lecture on alternative dispute resolution (ADR).  
Over the next few weeks I will revisit the topic by presenting an edited account of my presentation.
    What is ADR?
    ADR refers to the various mechanisms employed by parties to settle their disputes outside of litigation within the court system. Increasingly it has also become an important ancillary aspect of the formal court system with its incorporation into revised civil procedure rules and its emphasis on case management.
    In his book Alternative Dispute Resolution: A Developing World Perspective, Professor Albert Fiadjoe, while recognizing the significant increase in the use of ADR in recent years, traces its origins to traditional societies.
    Writes Professor Fiadjoe:   “Traditional societies, without the trappings and paraphernalia of the modern state, had no coercive means of resolving disputes. So, consensus building was an inevitable and necessary part of the dispute resolution process. The court system only developed as a necessary by-product of the modern state.  Societies in Africa, Asia and the Far East were practising non-litigious means of dispute resolution long before the advent of the nation state, for the building of long-term relationships was the bedrock on which those societies rested.” (Page 2).
Phenomenon
    The increasing complexity of modern life has resulted in a significant increase of work for the traditional courts, resulting in inevitable delays. This phenomenon has led to the search for alternatives.
    In England a response has been to incorporate ADR into the Civil Procedure Rules (CPR). The English CPR Rules require ADR if the court considers it appropriate.  In such cases the court has the option of imposing costs and other sanctions on parties who, without good reason, fail to comply.
    Stuart Sime, in his book A Practical Approach to Civil Procedure (10th ed. pp. 62-3) identifies the advantages of ADR as follows:
“(a) ADR procedures are more flexible.
 (b) ADR procedures are usually simpler than litigation, with less demanding preparation required, and the strict rules of evidence not applying;
 (c) ADR procedures can be arranged to suit the convenience of the parties, in a suitable location, resulting in a minimum of disruption to their business;
 (d) ADR is often speedier than litigation;
 (e) trials in litigation are generally in public; whereas ADR takes place in private;
 (f) ADR is usually less stressful than litigation;
 (g) ADR can produce solutions going beyond the strict parameters of the original dispute. A court only has jurisdiction to make orders within the confines of the issues raised by the statements of case;
 (h) ADR is less confrontational, which means it provides a better prospect of enabling parties to maintain long-term relationships (for example, between businesses or neighbours. There are situations, for instance, where there is a distribution contract or a commercial lease where the parties are tied into a long-term relationship in any event);
 (i) ADR is felt to be less expensive than litigation;
 (j) arbitration awards are generally final, so usually avoid the risk of the parties facing an appeal; and
 (k) arbitration works well in international disputes, where arbitration awards can be easily enforced across different jurisdictions, provided the country in question is one of the more than 130 countries that are signatories to the New York Convention 1958.”
• Cecil McCarthy is a Queen’s Counsel. Send your letters to: Everyday  Law, Nation House, Fontabelle, St Michael.
 

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