Pros and Cons of ADR

[chrisjb]

hello everyone, my teacher gave us very vauge pros and cons of ADR, so i decided to come up with my own instead. What do you guys think of these? Are there any major problems with them, and are there any major advantages/ disadvantages that i have skipped?

Positives of ADR
-   Faster and cheaper than traditional court (usually between 75 and 200 dollars per hour depending on seriousness of claim, as apposed to higher court rates and costs of barristers and solicitors). Most cases resolved faster because of relaxed rules and procedures, and flexibility.
-   Less serious cases receive more attention than they would have in court system.
-   Confidential- So no stigma attached or negative social attention given to either party.
-   Parties likely to accept and be content with decision because there voluntarily, and process is not adversarial, but rather focuses on finding a ‘win-win’ solution.

Negatives of ADR
-   Confidential- press and public unable to scrutinise decisions, therefore miscarriages of justice can take place and be unnoticed, individuals’ or groups’ actions go unnoticed, and problems with the law are not noticed by the wider community.
-   Not legally binding (except for arbitration) so time and money may be wasted in ADR if either party decides not to accept the outcome.
-   Intimidation can take place in ADR, where one weaker party compensates too much for a stronger party. This problem is nullified in traditional court proceedings by the use of barristers to argue one’s point.

[Spreadbury]

-   Less serious cases receive more attention than they would have in court system.

i'm not so sure about this one, every case heard in court is dealt with fairly and considered in as much detail as necessary - which is a necessity for an effective legal system

-   Parties likely to accept and be content with decision because there voluntarily, and process is not adversarial, but rather focuses on finding a ‘win-win’ solution.

just an addition to this one. you could also say that since the parties have to cooperate to achieve the 'win-win' solution their relationship is preserved which can be important in cases where an ongoing relationship needs to be maintained e.g. child custody or work-place cases

-   Not legally binding (except for arbitration) so time and money may be wasted in ADR if either party decides not to accept the outcome.

to extend on this you could also mention that most forms of ADR (except arbitration) are voluntary so one party may decide to not even turn up which will delay a resolution to the dispute


and here are my notes on the subject:

Strengths of Alternative Dispute Resolution:
ADR is generally faster: ADR is often quicker than going to trial. Litigation may take one or more years to resolve while ADR can, in most cases, be completed within 4 – 7 months

ADR is often less expensive: ADR is significantly less expensive than litigation as it saves the court costs, lawyer’s fees and expert fees

Most forms of ADR allow the parties to be directly involved in deciding the outcome: this involvement is believed to increase satisfaction with the outcome as well as increase their compliance with the agreements reached by allowing more participation from the parties

Most forms of ADR are more cooperative and less competitive than court action: There is less ill-will between participants when using ADR methods and it preserves the relationship between the parties which is a key advantage where the parties have an ongoing relationship e.g. child custody or workplace cases

Some forms of ADR can offer processes and remedies that courts and tribunals cannot: parties looking for explanations and apologies rather than large compensation may draw greater satisfaction with a more personal and less rigid approach

Weaknesses of ADR:
One party may compromise too much: It is argued that people who use ADR are those who cannot afford to go to court. These people may have a legitimate legal claim, but ADR requires compromise and one party may have to accept a compromise rather than their full legal entitlements

Not all ADR processes produce a binding and enforceable outcome: If ADR is binding parties have a limited right of appeal and ADR may not be effective if there is an imbalance of power between parties or not there is insufficient information

Most forms of ADR are voluntary: one party may refuse to participate or refuse to reach a compromise. Using ADR in these instances will cause delays in settling a dispute

There is limited public scrutiny of ADR settlements, particularly the outcomes of mediation: some forms of ADR provide confidential settlements. There is little public scrutiny in these matters and limited checks that individuals are being treated fairly

[chrisjb]

thanks man,

I've edited my notes and put in a couple of the ones you had too.

[flash36]

A weakness of ADRs;

- not appropriate for disputes where there is a discrepancy in the balance of power, for example employer and employee in negotiation or mediation; the employee is going to settle for anything in order to keep their job.