This essay will provide a detailed examination of what Alternative Dispute Resolution (ADR) is, especially mediation, the various ADR techniques, the advantages and disadvantages of ADR; and whether or not courts should have the authority to compel individuals to undertake mediation or other forms of ADR. This essay argues against the power of courts to compel disputing parties to mediation, but may have the power to encourage parties to resort to mediation at first instance. This essay will base its arguments on the question of whether courts should compel civil parties to go the route of ADR on the perceived benefits of ADR and its success rate. The thesis of this essay is not that mediation is used inappropriately to resolve disputes, but that court-ordered mediation is inappropriate. I will start with a brief overview of alternative dispute resolution, its advantages and disadvantages and focus mainly on mediation. The next section will explain the mediation process and then explain why court-ordered mediation is inappropriate. ADR is a term generally used to refer to informal dispute resolution processes where the parties meet with a professional third party (not a judge in his professional capacity and sometimes more than one third party) who helps them resolve their disputes in a less formal and often more consensual than what happens in the courts. Goldberg, Green and Sander, identify four distinct objectives of ADR; to alleviate court congestion and undue costs and delays; increase community involvement in the dispute resolution process; facilitate access to justice; and to provide more effective dispute resolution. The concept of ADR is extremely broad. Defining...... half of the article......72–73 (1997).Roselle L. Wissler, The Effects of Mandatory Mediation: Empirical Research on the Experience of Small Claims and Common Pleas Court, 33 WILLAMETTE L REV. 565, 565 (1997). Spangler, Brad. “Alternative Dispute Resolution (ADR). “Beyond intractability. Eds. Guy Burgees and Heidi Burgees. Conflict Information Consortium, University of Colorado, Boulder. Posted: June 2003S. GOLDBERG, E. GREEN, & F. SANDER, DISPUTE RESOLUTION 503 (1985) Sir Rupert Jackson, Review of Civil Litigation Costs: Final Report (2009), ch 21, para 4.2Stevens H. Clarke & Elizabeth Ellen Gordon, Public Sponsorship of Private conciliation: civil mediation ordered by the court, 19 JUST. SYS. J. 311, 336 (1997). The Lord Chancellors Dep't, Alternative Dispute Resolution, A discussed Paper, Annex B (November 1999) available at http://www.dca.gov.uk/consult/civ-just /adr/annexbfr.htm
tags