Dr. Kishore Jadav
The term "Alternative Dispute Resolution “encompasses a variety of methods or techniques that are used as an alternative to full-scale court processes. This involves a neutral third person to resolve conflict that assists the opposing parties in developing workable solution outside the courtroom. ‘The US Administrative Dispute Resolution Act of 1996'defines alternative means of dispute (conflict) resolution as "any procedure that is used to resolve issues in controversy, including, but not limited to, conciliation, facilitation, mediation, fact-finding,
minitrials, arbitration and use of ombuds, or any combination thereof”. The two most common forms of Alternative Dispute (Conflict) Resolution, which differ by the degree of control the disputing parties have over the outcome are:1. mediation and 2. arbitration. Mediation provides for a neutral third party to help the parties resolve their differences voluntarily; and arbitration provides for one or more impartial persons to assess both sides of a dispute (conflict) and to make a final and binding decision. Effective ADR establishes a collaborative framework for dispute resolution, without relinquishing the right to litigate significant, high-risk diputes.
When strategically applied, ADR has proven to be a useful tool in reducing agency costs both in time and money, improving working relationships, and increasing the efficiency of problem solving programs. Used tactically, ADR has been shown to assist the parties in overcoming IMPASSE; by identifying creative solutions to daunting problems, a neutral can help turn difficult NEGOTIATIONS into problems solved. To be able to effectively employ this weapon, one must be familiar with the spectrum of ADR methods and techniques’. One method to help bury the hatchet: a well-designed alternative dispute (conflict) resolution program. ADR programs typically begin with informal discussions, then move on to mediation and other techniques; formal arbitration is considered a last resort. The most difficult disputes (conflicts) usually end up in arbitration which generally is faster and less expensive than litigation.
Throughout history, societies world-over have used many forms of traditional methods or techniques--NON-JUDICITAL and INDIGENOUS --to resolve conflicts or disputes. To cite a few examples of extending traditional forms of dispute resolution are: Indian Panchayats of five elder arbitrators, and its campaign to use lok adalats (people's courts)for the resolution of several conflicts like accidents and family disputes; the wasta for the process of sulha in the Middle East; and the distinctive form of evaluative Chinese mediation known as tiaojie. Argentina, Bangladesh, Bolivia, Columbia, Ecuador, Philipphines, South Africa,
Sri Lanka, Ukraine, and Urugua are some of the countries that are engaged in the ADR experiment. While some countries use the exact ADR model of another country, others modify one to their requirements and use that as a hybrid model. By hybrid, it means, procedures that combine elements of mediation and arbitration. Such hybrid forms hold great promise for managing conflicts, although such procedures have been under theorized conceptually. Since the decade of 70s, the use of alternative dispute (conflict) resolution has become viable and popular option to judicial systems. The growing popularity of alternative dispute (conflict)resolution is generally attributed to speed, efficiency, cost-effectiveness, and the fact that ADR reduces animosity between parties, offers flexibility in scheduling, and protects privacy of the parties. The goals of ADR are: 1) To reduce delay in the resolution of disputes(conflicts);2)To by-pass ineffective and discredited courts; 3)To increase popular satisfaction with dispute(conflict)resolution; 4)To increase access to justice for disadvantaged groups; 5)To support and complement court reform; and 6) To reduce the cost of resolving disputes(conflicts).
Now, two ideal types of international third-party dispute (conflict) resolution are identified. These are:1.interstate and 2.transnational.Under interstate dispute resolution, states closely control selection of, access to, and compliance with international courts and tribunals. Under transnational dispute resolution, by contrast, individuals and nongovernmental entities have significant influence over selection, access, and implementation. This distinction helps to explain the politics of international legalization. Transnational dispute resolution tends to be associated with greater compliance with international legal judgements, particularly when autonomous domestice institutions such as the judiciary mediate between individuals and the international institutions. Overall, transnational dispute resolution enhances the prospects for long-term deepening and widening of international legalization.
Some of the international institutions such as International Court of Arbitration of the International Chamber of Commerce (ICC),International Council for Commercial Arbitration; International Centre for Settlement of Investment Disputes(ICCA),World Intellectual Property Organization (WIPO),and World Trade Organization (WTO)are involved in practicing and promoting alternative dispute resolution. In addition, World Bank is also working with countries to administer ADR procedures. Several international ADR treaties and conventions have established a predictable legal environment for resolving international commercial disputes. Hosted by the International Court of Arbitration, the 18th Joint Colloquium on International Arbitration was held November 16, 2001, at ICC International Secretariat, Paris. The American Arbitration Association is the largest provider of dispute resolution services in the world and the clear leader in its filed. From its founding until today, it has administered more than 1.7 million cases, most of them arbitrations, according to American Arbitration Association Annual Report. This Association's reach today is truly GLOBAL. It has 54 cooperative agreements with 39 nations, offering multinational corporations access to familiar, reliable, and enforceable dispute resolution services in all of their offshore transactions.
While ADR has experienced a remarkable growth during the past two decades, online settlement is the latest trend that adds new dimensions to the process of conflict resolution. In March 2000, the European Commission launched an Internet forum to address the broad issue of online dispute resolution. November 6, 2000, world’s leading arbitrators gathered in Geneva to examine challenges and opportunities of cyberspace by acknowledging that the technological revolution has forced a change in the traditional approach to arbitration. The WIPO International Conference on Dispute Resolution in Electronic Commerce was organized by the WIPO Arbitration and Mediation Center in cooperation with the London Court of International Arbitration (LCIA), the Dispute Resolution Section of the American Bar Association (ABA), the Singapore Subordinate Courts and the Swiss Arbitration Association (ASA).Electric Commerce presented a series of changes and opportunities for dispute resolution, thereby giving users wider choice.
In ETHNIC CONFLICT, the third parties can contribute to its resolution, by adopting certain procedures. Among its broad generalizations, the most notable are these: third parties need to use heavier tactics with more intransigent disputants; track-two diplomacy often precedes track-one diplomacy; serious conflicts are often moved to the verge of settlement by chains of intermediaries; chains that produce results tend to become shorter as intermediaries drop out; and secrecy is usually essential for resolving severe conflicts. There is no question that long-standing ethnic conflicts, fed by memories of reciprocal violence and the perception of incompatible ends, can frustrate the most earnest efforts of even the most powerful and prestigious INTERLOCUTORS. But if third parties remain patient and on the lookout for those moments of 'ripeness' in an ethnic dispute, the diplomatic tactics outlines above can be highly effective.
