Use Of Alternative Dispute Resolution Research Articles

Review of Alternative Dispute Resolution Methods in Construction Projects

Disputes are common in construction projects due to their dynamic and complex nature. If project leaders ignore finding resolution quickly, these disputes can impact negatively on project performance. Therefore, effective dispute resolution is important for successful project performance and closure as well. This paper comprehensively explores the use of Alternative Dispute Resolution (ADR) techniques for construction disputes focusing on negotiation, mediation, arbitration, expert determination, and adjudication. The study investigates the effectiveness and applications of each ADR method, emphasizing the advantages of ADR, including time and cost savings, confidentiality, and relationship preservation. This paper provides a better understanding of these mechanisms for anyone involved in construction projects. Furthermore, the paper offers a strategic approach to choosing the most suitable ADR method, considering factors such as financial constraints, organizational dynamics, legal requirements, and the nature of the dispute.

The growing role of mediation in resolving labour disputes

In the article, the author has emphasized that mediation is faster and easier than litigation, and also brings monetary and non-monetary savings. Monetary savings include the reduction of costs associated with the involvement of lawyers, and the implementation of various procedural and procedural actions. An example of non-monetary savings is the reduction in the amount of stress and anxiety that typically occurs during litigation. And so having a neutral person who can make judicious use of confidential meetings greatly improves the negotiation process. For example, a mediator can provide a necessary reality check by helping the parties assess their strengths and weaknesses.In the article, it has been proved the gradual and decisive increase in the importance of mediation in the resolution of labour disputes, as well as the significant importance of mediation in the USA is given as an example. In the United States, the use of alternative dispute resolution (ADR) by the federal government has increased largely due to the adoption of special laws that direct or encourage the use of this method of labour dispute resolution. Mediation in labour disputes in the US has also become widespread in the private sector.Basic statutes in the US encourage the use of ADR in employment discrimination cases. The National Labour Dispute Resolution Act of 2001 (NEDRA) required, among other things, all federal agencies, courts, and other companies that receive $200,000 or more in federal funds to establish internal labour dispute resolution programs or systems that would provide for voluntary the option of employee access to external certified third parties – mediators for consideration of complaints in labour law matters.The author has concluded that mediation is aimed at solving problems: fixing things for the future replaces focusing on whom to blame for past events. Mediation maximizes autonomy by allowing the parties to maintain confidentiality – to develop an agreement that «tailors» to settle all aspects, guided by the position of each party, and that includes terms that go beyond what a court could decide. Such an agreement can be considered fairer than one imposed by a third party. Mediation thus offers the possibility of an integrative, «win-win» solution that meets the interests and needs of both parties. Mediation often provides an opportunity for emotional catharsis, helps maintain or restore relationships between parties, and provides greater awareness of conflict management

Reflection on and construction of the legal regimes of nuclear damage compensation in China: a policy analysis perspective

This paper explores the legal policy of nuclear damage compensation laws. As a specialised sector of nuclear law, the legal regimes on nuclear civil liability aim to provide timely and effective compensation to third parties, while also addressing the special policy concern of ensuring the sustainable development of the global or national nuclear industry. The paper examines the international methods of establishing major principles of liability with the corresponding rules and regimes to balance the interests of the parties involved. Comparatively, there is great uncertainty surrounding Chinese rules and principles of nuclear liability. Therefore, this paper suggests accelerating the enactment of a Chinese law specifically addressing nuclear damage compensation, aligning it with the national strategy and prospects of civil nuclear energy in China. Additionally, issues closely related to nuclear damage compensation, such as nuclear insurance policies, operation and supervision of national public funds and the use of alternative dispute resolution to settle nuclear disputes, are also discussed.

Alternative Dispute Resolution (ADR): A Suitable Broad Based Dispute Resolution Model in Nigeria; Challenges and Prospects.

Purpose: Due to the flaws in the traditional judicial system, the use of Alternative Dispute Resolution (ADR) methods is gaining popularity among scholars and lawyers around the world. Most scholarly articles have examined the inherent advantages of Alternative Dispute Resolution (ADR) techniques over the traditional judicial processes for resolving different types of conflict. Despite the increasing frequency and classification of conflicts in Nigeria, little research has been conducted on the reasons for, and barriers to, disputants' use of alternative dispute resolution (ADR) systems as viable options. Given the complexity of the nature and structure of disputes in Nigeria, this research delves into the factors that push and pull litigants into the use of Alternative Dispute Resolution (ADR).
 Methodology: This study utilized an explanatory research approach to investigate the many distinctive kinds of conflicts and match them with the most relevant ADR procedures. In particular, property disputes, family conflicts, and business disagreements were investigated. 
 Findings: According to the findings, Alternative Dispute resolution (ADR) may lead to a considerable reduction in the amount of time and expense of the dispensation of justice that addresses unfairness in the system of criminal justice administration, ultimately resulting in positive social change.
 Contributions to Theory, Policy and Practice: The study concludes that Alternative Dispute Resolution (ADR) processes have significant potentials for handling the growing number of disputes. However, it is necessary to address their shortcomings as well as facilitate collaboration between the practitioners and the regular courts. It would improve social stability and guarantee satisfaction for the perpetrator, the victim, the community, and society as a whole if this were done. The study recommended, among other things, that the general public and litigants be educated on the inherent advantages of Alternative Dispute Resolution (ADR) in the resolution of conflicts.

Exploring the future of commercial dispute resolution in Asia: Accelerating efficiency and effectiveness in ADR

AbstractSince 2017, Japan has rapidly developed its hard and soft infrastructure to accelerate the use of alternative dispute resolution (ADR) in Japan, such as establishing the Japan International Dispute Resolution Center and the Japan International Mediation Center, Kyoto, as well as amending the Foreign Lawyers Act. The legislative process to amend the Japanese Arbitration Act is underway and discussions to accede to the Singapore Convention are ongoing. Mediation and settlement discussions involving judges during the litigation process are traditionally common in Japanese court practices, which would have some implications for investor–state mediation, which is a recent hot topic in the field of investor–state dispute settlement. Numerous means of further improving the efficiency and effectiveness of ADR proceedings have been discussed globally, including mid-stream conferences, Calderbank offers, the use of mediation in complex disputes, and the advanced use of Arb-Med-Arb proceedings utilizing party-appointed arbitrators.

RESOLVING ENVIRONMENTAL DISPUTE WITH MEDIATION METHOD

Dispute the Environment is a dispute between two or more parties that posed the presence or suspected presence of contamination and / or destruction of the environment. Dispute settlement environment in the outer court was held to reach an agreement regarding the form and amount of compensation and/or for specific actions to ensure the will not the occurrence or recurrence of a negative impact on the environment. In the settlement of disputes environment outside the court can use the services of a third party, both of which do not have the authority to take decisions and who has the authority to take decisions, to help resolve disputes environment. Mediation is one form of dispute resolution environment outside the court. In order to resolve the dispute the environment outside the court, then the mechanism is the use of Alternative Dispute resolution as stipulated in Law No. 30 of 1999 on Arbitration and Alternative Dispute resolution. The mediation can also be used to resolve environmental disputes in Court that the mechanism is based on the PERMA No. 1, 2008 on the Procedure of Mediation in the Court

Use of alternative dispute resolution on enviromental area

This article analyzes the situation facing Mexico, as a result of environmental conflicts, which according to research and records of the federal government have been increasing and today total between 500 and 800, most of them latent or in the process of escalation. It is necessary that, in the face of this phenomenon, greater use be made of the Alternative Dispute Resolution already recognized as a human right by the Political Constitution of the United Mexican States, as a peaceful and extrajudicial means of access to justice, and that the pertinent adjustments be made so that the agreements reached have binding effects.
 The problem faced in the state of Tabasco, located in the southeast region of the country, hard hit by the exploitation of hydrocarbons, extensive cattle ranching and deforestation, whose environmental effects have generated conflicts in recent years that do not find the proper solution, due to cultural, social, political, and administrative factors, is presented in a particular way to the detriment of the well-being of the people concerned.

Prospects for the Use of Alternative Dispute Resolution in the Russian Federation

Prospects for the Use of Alternative Dispute Resolution in the Russian Federation

The enforceability of mediation clauses: A critical analysis of English case law

This article shows that the English case law on the enforceability of mediation clauses presents a number of flaws. First, and most importantly, English courts generally fail to distinguish between the positive and the negative obligations created by such clauses. As a result, they wrongly apply the certainty requirement to the former, rather than the latter, which leads to frequent refusals to enforce mediation clauses in situations where enforcement should be granted. These decisions discourage parties from agreeing to multi-tier dispute resolution clauses providing for preliminary mediation, thus undermining the general policy favouring the use of alternative dispute resolution (ADR) mechanisms. Moreover, judicial discretion in deciding whether to give effect to a valid mediation agreement is unjustified and exercised on the basis of questionable considerations.

Prerequisites for the application of alternative methods of resolving criminal law and criminal procedure conflicts

The article examines the prerequisites for the use of alternative methods of resolving criminal law and / or criminal procedure conflicts. It is stated that the use of alternative dispute resolution in criminal proceedings is possible only if changes or differentiation of the criminal procedure form, taking into account the interests of participants in criminal law and / or criminal procedure conflict. A positive consequence of the use of alternatives is procedural economy and speed of criminal proceedings, with an unconditional guarantee of achieving the objectives of the criminal process and ensuring the protection of the rights and legally protected interests of persons in criminal proceedings in their application. It is noted that at the present stage of development of criminal procedure legislation the differentiation of procedural forms is one of the priority conditions for the rational use of procedural means, contributes to greater efficiency and effectiveness of criminal proceedings with significant procedural savings. The bases and criteria of differentiation of the criminal-procedural form are investigated. It is noted that compromise constructions are the result of a combination of two principles of the criminal process - public and dispositive, and their application is possible only in a competitive process. The material and practical component of the differentiation of the criminal procedure form is singled out, and attention is focused on the division of the criminal procedure form when applying alternatives to the simplified and complicated forms depending on the law enforcement. Based on the study, it was concluded that the implementation of conciliation procedures in the system of alternative resolution of legal conflicts (disputes) in criminal proceedings largely depends on the differentiation of criminal procedure, procedural economy, speed of criminal proceedings, as well as taking into account the interests of criminal and procedural conflicts. Key words: criminal process, procedural economy, procedural form, conflict, compromise, differentiation, interest, alternative.

Do Alternative Dispute Resolution (ADR) and Track Two Processes Support Transboundary Marine Conservation? Lessons From Six Case Studies of Maritime Disputes

By definition, marine protected areas (MPAs) and other effective area-based conservation measures (OECMs) address spatial aspects of the ecological processes and marine features. Such a requirement is especially challenging in areas where there is no clearly defined jurisdiction. However, in these areas, assigning sovereignty and rights can be achieved through bilateral or multilateral agreements, or with the use of alternative dispute resolution (ADR) tools such as mediation and arbitration. In some cases, states may engage in transboundary marine conservation initiatives to provide an entry point to enable wider collaboration. These processes can also evolve into a form of ‘environmental peacebuilding’ while ideally maintaining ecosystem functioning and resilience as a core goal. Conversely, MPAs and OECMs can also be used to assert maritime sovereignty rights over disputed waters, under the pretext of conserving marine habitats. This paper identifies emerging issues of conflict resolution and their interaction with transboundary marine conservation. While ADR focuses on negotiations and facilitated processes between state representatives (“track one diplomacy”), we also discuss other forms and levels of marine environmental peacebuilding and dispute resolution, particularly those between civil society organizations (“track two diplomacy”). The six case studies presented highlight areas of recent maritime conflict or border disputes in the Mediterranean Sea, the Red Sea, the West Indian Ocean, the Korean West Sea and the South China Sea. In all cases, high ecological value, vulnerable ecosystems, and the need to conserve ecosystem services provide a shared interest for cooperation despite on-going diplomatic difficulties. The strategies used in these cases are analyzed to determine what lessons might be learned from cross-border collaborative marine initiatives in situations of territorial dispute. The use of ADR tools and their ability to support joint marine initiatives are examined, as well as how such initiatives contribute to formal border negotiations. Other forms of inter-state dialogue and cooperation between local or civil organizations, circumventing formal treaties and negotiations between state leaders (‘track two’) are also investigated. Finally, other influencing factors, including third-party involvement, stakeholder interests, power dynamics, economic context, and socio-cultural aspects, are considered.

The Place of Alternative Dispute Resolution (ADR) in Recovering Assets of 'White Collar Crimes' in Kenya

In a civil or criminal justice system, litigation has always been the first option whenever disputes arise. A good number of people have grown up believing or have at least been made to believe that litigation is the best and most trustworthy method of solving disputes. Even as they have progressed and developed critical thinking skills which allow them to gauge the efficacy or otherwise of litigation as the premier dispute resolution mechanism, they keep favoring it because of the unknown benefits of alternative dispute resolution mechanisms. Safe to take the risks with what is known rather than what is relatively unknown. Economic and financial crimes is one such field that has barely employed the use of alternative Dispute Resolution. Economic crimes refer to crimes of a financial nature and in our context, those that in one way or another affect the larger public as one. They involve the unlawful taking of public resources. Criminologists prefer to use the term white collar crimes because of the status and type of individuals who ordinarily commit them. Alternative dispute resolution in the country has over the last years gained notoriety and deservedly because of its potential to not only maintain relationships between disputing sides but the fact that it saves court resources which would otherwise have been spent pursuing the matters in court. The same has slowly found itself in the discourse around economic crimes and has even received the endorsement of the authorities mandated with the investigation and prosecution of such economic crimes. This paper seeks to assess the benefits of the use of alternative dispute resolution in dealing with economic crimes and as such, provide a reference point for those who remain skeptical about the wisdom of using non-litigation measures to deal with people who have been accused of fleecing the public.

Family dispute resolution and access to justice in Australia

AbstractThe context of this paper is the several innovative reforms since the Australian government changed the family-law system more than forty years ago with the enactment of the Family Law Act 1975 (Cth). Whilst no-fault divorce was introduced over four decades ago, the watershed effect of replacing a blaming culture with a collaborative problem-solving approach to family disputing has provided a stepping stone for a progressive pathway to less adversarialism in family conflict. This narrative resonates throughout the family-law system today. It also continues to guide the justice discourse in family matters. This paper focuses on developments in the family-law system canvassing several legislative amendments that demonstrate the use of alternative dispute resolution (ADR) as a means of improving access to justice in relation to family disputes in Australia. It is argued that, in the family-law system, justice and ADR are inextricably linked. In support of this contention, the growth, development and evaluation of family dispute resolution is considered; access to justice issues that arise are highlighted. Finally, it reviews ramifications for the future considering recommendations from the recent inquiry into the family-law system.

Organizational Conflict Resolution and Strategic Choice: Evidence from a Survey of Fortune 1000 Firms

This article examines the strategic underpinnings of firms’ use of alternative dispute resolution (ADR) practices. The authors argue that a firm’s strategic orientation and commitment to ADR shape its adoption of dispute resolution techniques—such as mediation and arbitration. Firms vary in the benefits they seek to gain from adopting ADR practices, and firm-level use is affected by these anticipated benefits. The authors also propose a link between a firm’s commitment to the diffusion, access, and their use of ADR, on the one hand, and employee usage on the other. They test their theory using survey data from Fortune 1000 corporations and identify four distinct strategic orientations toward ADR, which in turn help to explain use of ADR within firms. Finally, they also find that a firm’s commitment to ADR is also shown to affect the firm’s use of mediation and arbitration.

Religious Diversity in the Workplace: The Case for Alternative Dispute Resolution

The workplace is a focal point for debates about religion and public life. This article examines the question of religion at work, and how to fairly resolve the conflicts it generates. Specifically, it advocates for the use of alternative dispute resolution to address these conflicts. Alternative dispute resolution refers to a set of dispute processing methods, mainly arbitration and mediation. Unlike litigation, these procedures rely on the consent and cooperation of the parties involved. I argue that alternative dispute resolution is best conceived of as a desirable complement to the rule of law rather than a cheaper alternative. It conveys a distinctive approach to procedural fairness, which is attentive to individual circumstances, and it frames the relationship between disputants in a cooperative way. Alternative dispute resolution is thus a valuable tool for the accommodation of religious diversity in the professional world.

Premises recovery through adoption of alternative dispute resolution (ADR) techniques

Purpose This paper aims to explore the use of alternative dispute resolution (ADR) techniques as a legitimate means of ejection of recalcitrant tenant in property. This is with a view of providing information that will improve property investment and management. Design/methodology/approach The paper adopts a case study approach using five selected case studies where ADR approach was used to recover premises. Findings The experience from the case studies shows that the use of ADR in premises recovery is effective but has its challenges. In the five case studies, consent judgment, mediation and negotiation were used to recover premises in less than three months compared to an average of 18 months using litigation. Also, the cost in all the cases were lower where they exist at all than when litigation are used. The paper provides useful information to practitioners on the use of the effective alternative approach to recover premises from recalcitrant tenants. Originality/value The paper provides practical ways through which recovery of premises could be achieved through non-adversarial technique in developing property markets, which hitherto was not available in literature.

Alternative Dispute Resolution: A Tool for Managing Leadership Conflict in a Church

Dispute within a church is unavoidable since members come from diverse backgrounds which make their opinions and ways of viewing issues different and sometimes conflicting. Management of leadership conflict in a church has not been given much attention despite the fact that leadership conflict is often rampant in a church. Such conflict likely undermines the essence of the church and its leadership, which supposed to be an epitome for other forms of leadership in society. Though scholars have postulated several ways of managing church based conflicts, little or no attention has been given to the use of alternative dispute resolution to address leadership conflict in a church. Hence, the current paper examines how alternative dispute resolution may be use to resolve church based leadership conflict.

Should National Human Rights Institutions Institutionalize Dispute Resolution?

The UN has promoted the use of alternative dispute resolution (ADR) by national human rights institutions (NHRIs). This article critically examines this proposition by analysing the three assumptions that underlie it. First, that ADR is an appropriate means by which to resolve human rights disputes; second, that ADR should be provided in institutional form; third that an NHRI should play a role in the delivery of ADR. We argue that voluntary engagement with ADR is permissible subject to procedural and substantive standards of justice but identify the risk that the offer of ADR by an institution may turn into a de facto mandatory process if not set within a context in which the courts are also accessible. Rather than an outright rejection of a role for ADR in such circumstances, we examine the potential contributions an institution could make to redressing the deficiencies in access to justice landscape and identify the key factors states and other policymakers should take into account when determining which institution(s) assume a dispute resolution role.

ALTERNATIVE MEDIATION OPERABILITY MECHANISMS UNDER STANDARD CONSTRUCTION CONTRACT CONDITIONS

The use of alternative dispute resolution (ADR) techniques has been on the rise, particularly as part of the contemporary, staged-type mechanisms forming part of the pertinent conditions of the construction contract. Among the several ADR methods in use, mediation is the method widely found to be explicitly or implicitly incorporated in any such mechanisms, with its use being often stipulated as condition precedent to ultimately resorting to arbitration. This paper investigates the varying statuses of mediation as prescribed under three American-based standard contract conditions, in comparison with its implied status under international such conditions. The within and in-between comparative analyses revealed distinct differences and some resemblances in respect of several concerned attributes including: (1) the staging (sequence step) of the mediation process within the involved claim/dispute resolution timelines, (2) the condition(s) for triggering such a process, (3) the provisions governing its length, and (4) the manner with which it may be ended. The paper concludes with inferences as to the characteristics that may be hypothetically viewed as more conducive to the effective employment of such an ADR technique in resolving disputes.

Mediation in Ghanaas Criminal Justice System: A Proposal for an Extension to Cover Severe Offences

Unlike a civil wrong, a crime upon its commission is regarded as an offence against the State and not the human victim(s) involved. This has made the use of Alternative Dispute Resolution (ADR) mechanisms in the resolution of a crime rather challenging. Regardless of this, the Ghanaian law provides for the use of mediation in resolving non-severe offences that do not amount to felony and are not aggravated in nature. Notwithstanding the gains made by Ghana in legislating criminal mediation in non-severe offences, an evaluation of its laws disclose that this provision does not extend to severe criminal cases. This paper seeks to fill this lacunae and focuses on the need to extend mediation to resolve severe offences. Drawing lessons from how severe offences have been successfully mediated in other jurisdictions and the benefits of restorative justice , it concludes on how Ghana can learn from same , and by extension, mold its own thereof having regard to its unique legal and socio-cultural setting.