Thursday, July 23, 2009

Alternative Dispute Resolution-settling your disputes out of court

It is a well established practice in Guyana, that upon the slightest hint of discord people begin to think of visiting a lawyer with the ultimate aim of having their day in court ,which should supposedly provide a final settlement to the dispute. This is hardly strange since the Common Law history of our country and the rest of the English speaking Caribbean is based on the adversarial system ; being essentially a system in which two or more parties involved in a dispute will approach a court (or formal dispute resolution forum in which one or more judges sit to try the dispute).This system is heavily based on the presentation of evidence and the persuasiveness of the arguments presented, thus the winner of the dispute is most often determined by an expert combination of those factors. In example many persons would recall the late Johnny Cochrane, criminal attorney for O.J Simpson in the 1994 trial because of his persuasive rhetoric and elegant yet flamboyant manner of delivery, which undoubtedly provided the foundation for Simpson’s acquittal. For the vast majority who approach the courts for settlement of their disputes, the result is hardly as dramatic or rewarding as presented on television or in the movies, people have been known to faint or collapse in the Magistrate’s and High Courts from the sheer terror of having key personal matters decided on by a third party in accordance with precedent and a number of issues which they do not understand. Others have been known to take ill right after judgment has been delivered because they lost a case. It is hardly to be proposed that the system of law is draconian, unjust or irrelevant, it is simply a fact that it does not necessarily address as far as possible all the ancillary factors of the disputes which come before it. A Judge does not have the time to enquire of business partners in dispute whether they wish to remain in business together after a matter is concluded, nor is she in any position to advise the parties that some give and take is necessary, that forgiveness and reconciliation would serve far better for the longevity of a relationship than a judgment as to whose rights were infringed and what the compensation would be. At the end of a dispute one party wins, the other loses and they must deal with the consequences.
Alternative dispute resolution has emerged in recent times as one of the most effective ways of dealing with disputes which arise in the civil jurisdiction of the courts and even more significantly, outside the courts. It comprises the methods of arbitration, mediation, negotiation and conciliation, and for the construction and energy industries, adjudication. The most frequently used methods of alternative dispute resolution are arbitration and mediation. The selling point of these ADR methods is that the parties have control over the resolution process to a large extent and are allowed flexibility in how they wish to resolve the disputes, they are time saving, cost effective and user friendly. The parties are made to feel at ease and can explain their side of the matter, emotions and all.
Arbitration is used normally in the resolution of commercial matters, the arbitrator being a neutral party with specific expert knowledge in the law or industry. The Arbitrator is trained to deal with lawyers, presentation of evidence court room control and may ask pertinent questions, visit sites, call expert witnesses and generally engage such aid as is necessary for a fair and clear determination of a matter. Arbitration may be voluntary, as in the case of a contract signed by two parties in which they agree to resort to arbitration to resolve their disputes.
Mediation is more commonly used to aid in resolving a wide range of disputes, from family , marriage and divorce issues, to land , corporate and property disputes. In mediation, the mediator sits as a neutral and leads the parties through structured, guided, discussion to possible solutions to their problems. In this system it has been found that people more often than not want respect, gratitude, and sometimes an apology, rather than monetary compensation, or can be led to accept more of each other’s foibles while working out ways of living harmoniously. The neighbour who is deeply hurt by another’s remarks may be able to win compensation after a long and expensive trial under Defamation law, a step which the majority of ordinary citizens would be unable to take, and so in retaliation might throw foul smelling substances in the other’s yard, the police would be called in, followed by a visit to the magistrate’s court, and the saga continues. With a choice of mediation, one party would visit the mediator and outline the issues, the mediator would then take steps to invite the other party to a briefing and then at the agreed time both parties would go to the mediation room to discuss the matter. This method has proven to be extremely successful in resolving numerous community and family disputes, and is enjoying equal fame in other areas of life. ADR is fast recognised as being an effective and affordable way of resolving disputes worldwide and is annexed to the court systems of most developed countries, and quite commendably in Guyana as well. Many mediator’s can attest to the joy experienced by parties who speak with each other under controlled circumstances , for the first time in years at times ,and then go on to solve their problems themselves. It is the power of control over one’s affairs which gives the participants in a mediation the greatest satisfaction, apart from resolving the dispute, as against having a third party or judge do it for them. Importantly, mediation is cost effective and can be arranged a time to suit the participants in most circumstances.

3 comments:

  1. Hello..

    Welcome, welcome.

    I'm Stolid Charisma, from Guyana911. Popular local blog.

    That's my friend Bakannal.

    I see your blog..

    Seems a bit long, boring, feminine. I kinda think all female lawyers are lunatics.. but, what do I know anyway?

    I'm kidding. Hope you have a sense of humor.

    Later.

    ReplyDelete
  2. Thanks, for your kind words,LOL.Nope I am not loony I promise but hey You never know!!

    ReplyDelete