The Upshot of Justice – Juxtaposition of Alternative Dispute Resolution (ADR) and Litigation viz-a-viz Conflict Resolution
Introduction
A critical analysis of ADR and litigation as contrasting approaches to conflict resolution discloses that the choice between these methods has significant impacts on the attainment of justice in legal proceedings, revealing the need for a comprehensive understanding of their respective strengths and limitations.
ADR, Alternative Dispute Resolution, just as the name implies, is an alternative mode of dispute settlement that involves negotiation, mediation, arbitration, conciliation, etc.
Litigation, on the other hand, is the formal process of going to the court to settle conflict strictly on the provisions of law.
This article seeks to explore the upshot of justice by placing side-by-side the two legal means of resolving conflict, shedding light on how they influence the attainment of justice.
Justice is a philosophical concept that cannot be given a definite definition but is widely regarded as the quality of being right and fair. It is often the aim of conflict resolution.
In comparison, ADR and litigation are conflict settlement modes. They both aim at arriving at an amicable settlement of disputants’ grievances.
In contrast, ADR lays more emphasis on settling disputes outside the courtroom. ADR is used generally to describe the methods and procedures used in resolving disputes either as alternatives to the traditional dispute resolution mechanism of the court or in some cases supplementary to such mechanisms. It encourages collaboration, efficiency, and flexibility. It is cost-effective, consumes less time, and promotes win-win situations. It ensures that relationships among parties are retained. This is especially important because disputes often arise between or among people who have been in close relationships than among strangers.
ADR mechanisms leave the final determination of decisions in the hands of the parties despite the involvement of third-party (ies) who only acts as catalyst sometimes as it gives room for parties’ active participation in dispute resolution processes when compared to litigation. Restorative justice is very much possible in ADR, unlike litigation which prioritizes retributive justice. ADR processes are more or less informal and do not strictly follow the rules of evidence in proving a case. It also promoted confidentiality.
ADR mechanisms include but are not limited to the following:
Negotiation; involves the primary disputing parties coming together either personally or through their legal representatives to iron out their differences. It depends on the voluntariness of the parties. The decision arrived at here is called an agreement or resolution. A third party is not involved. And the terms of the agreement are not binding.
Mediation; is often seen as advanced negotiation. It is the submission of a dispute to a neutral third party, who is known as a mediator for settlement, or decision. A mediator strives to reach a compromise, harmony, and a peaceful settlement between parties. He acts as a catalyst in getting the parties to reach agreement. The terms of settlement of mediation are not binding, and the contending parties are free to abide by the terms of the settlement, or go to court and enforce their legal right by suing.
Conciliation; ordinarily involves a neutral third party known as a conciliator who settles a dispute between an employer and his employer and his employees. In general, it is a process whereby the neutral third party facilitates communication between parties and helps them to reach an agreement or amicable settlement. A conciliation agreement is not binding on the parties. They can approach a court of competent jurisdiction for settlement.
Arbitration; is the submission of a dispute to a person(s) known as arbitrator(s) for decision. Usually, an arbitrator settles disputes using the principles of law, equity, and fairness.
Setbacks of Alternative Dispute Resolution
ADR is however not without its setbacks. ADR does not always promote justice, especially where a power imbalance exists between the disputing parties. Most of its decisions are often not binding. Parties can decide to back out before an agreement or resolution is reached.
Resolution to the adoption of ADR for dispute settlement is often by law in certain disputes but mostly on the voluntariness of the parties. It is this voluntariness of parties to decide whether or not to settle through ADR mechanisms that antagonists of the concept often capitalize on in rejecting ADR. Arguing that since it is voluntary its efficacy is dependent on the parties. But they forget that it is only an alternative which invariably means there is another mode that will be resorted to if the alternative fails.
Litigation
Litigation, on the other hand, is a judicial process of carrying out a lawsuit. Litigation could be civil and/or criminal. It is formal and usually done in the courtroom, subject to certain exceptions, with strict observation of the rules of evidence. It is adversarial.
Parties file their cases before the court, call witnesses, and tender evidence and the judges adjudicate on it and make a final decision.
In litigation, the decision of the court is final and binding on the parties but can be appealed either as of right or with the leave of the court.
Drawbacks of Litigation
Litigation, however, often creates enmity among parties and fractures relationships. In litigation, it is a zero-sum game where one party wins all while the other party loses all, and vice versa.
Participation of parties is limited to the legal representatives except where they are called as witnesses.
Litigation is time-consuming with a backlog of cases in courts. The cost of litigation is also not pocket-friendly. Professional fees, the cost of filing briefs, and appearance fees keep rising exorbitantly. All these drawbacks can sometimes hinder access to justice.
Conclusion
In conclusion, opting for either litigation or ADR in conflict resolution is a pivotal decision in the pursuit of justice. It is however important to note that both modes have their advantages and disadvantages and their suitability varies depending on the context of the dispute. The adoption of any of the modes is dependent on the dispute.
It is expedient to recognize that justice does not only have to do with the outcome but also encompasses fairness, accessibility, and expediency of the process.
Knowing that effective conflict resolution leads to a more just society, it is therefore recommended that the two modes of dispute resolution be allowed to work pari passu. They should coexist as complementary tools, each serving specific needs.
The upshot of justice is therefore in the judicious juxtaposition of ADR and litigation, having the demand of each case in mind and the broader pursuit of fairness and equity in the legal realm.
About Author
Michael Ikpenyi is passionate law student with vigor and enthusiasm for the legal profession. He is an ardent reader, researcher and an exceptional writer. He has an unusual enthusiasm for human rights and social justice, litigation, academics, intellectual property, etc.
