Alternative Dispute Resolution (adr)
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Law and the Legal Profession
Martin Coleman
Alternative Dispute Resolution (ADR)
Today the United States is a “sue happy” country. Over the last fifty years the crime rate has gone up. According to NationMaster.com, United Stated rank first in total crime with 23,677,800 which is much more than the second place Germany with 6,264,720. Total crime in this only includes rapes, murders, assaults, car theft. This information comes from the Seventh United Nations Survey of Crime Trends which covers 1988 to 2000.
We have been introduced to a lot of new crimes that has arisen from the constant advancement in technology and more. There are a lot of white collar crimes. “The Supreme Courts caseload has grown substantially over time. John Marshalls first term as chief justice, the Court delivered only 15 opinions; in 1853 that number rose to 46, a pitiful handful by todays standards. By 1853, the number of cases docketed had risen to 253, still small compared to the current docket of more than 7,500. So too workload of lower federal courts have grown. In the 1820s, about 3500 cases were pending in the nations circuit and district courts. In 1997 alone, litigants filed more than 270,000 cases in the U.S. district court and more than 50,000 in court of appeals.”(Murphy 88)
With all these cases filed and all these cases that are appealed, there are not enough judges or courts for that matter, to handles all these cases. This is why the we have come up with Alternative Dispute Resolutions(ADR). ADR first came about 1960s. Alternative Dispute Resolution simply refers to any way to solve a legal problem without having to go to court. Alternative Dispute Resolutions(ADR) doesnt just deal with minor cases.. Even the Federal government have come up with Alternative Dispute Resolutions(ADR) Working Group which is a branch of the Office of Disputes Resolution at the U.S. Justice Department. Congress and the President established the Working Group to coordinate, promote, and facilitate the effective use of ADR in the government, pursuant to the Administrative Dispute Resolution Act of 1996. (Cinciotta)
The Administrative Dispute Resolution Act (ADRA) of 1996 requires federal agencies to have policies that address the use of alternative dispute resolution (ADR) techniques and to appoint a Dispute Resolution Specialist. For the purpose of the statute, “alternative means of dispute resolution” include conciliation, mediation, facilitation, fact-finding, minitrials and the use of “ombuds.” (Administrative Dispute Resolution Act of 1996.)
There are many different kinds of Alternative Dispute Resolutions. The two most widely used types of ADR are arbitration and mediation. Other types of Alternative Dispute Resolutions are, mini-trials, summary jury trials, neutral evaluation, early settlement conference, mandatory settlement conference, conciliation, negotiation, expert evaluation, and plea bargaining.
Arbitration as defined by Nolo law dictionary as a non-court procedure for resolving disputes using one or more neutral third parties called the arbitrator or arbitration panel. Arbitration is a mini trial in which both parties decide on arbitrator. The arbitrator acts as the judge in a sense. He looks at the evidence and decides how to rule on the case. The decision that the arbitrator makes is binding. Because this is not a regular trial court, the rules of evidence and the procedures are not formal, so the case goes much faster, which is an advantage over a regular trial. A disadvantage is that sometimes the arbitrator is not neutral. I know from personal experiences that sometimes the arbitrator can be pay off by one of the cases dealing with property and sports.
The other most used type of ADR is Mediation. Mediation is a dispute resolution method designed to help battling parties resolve their own dispute without going to court. It is like an arbitration in that there is also third, neutral party, the mediator that helps them come to a solution. Mediation is different from arbitration in that the third party has no power. The mediator cannot enforce a solution as an arbitrator can. Like arbitration, an advantage of mediation is that it is fast. A disadvantage of mediation is that it doesnt always lead to a settlement. Mediation is mostly used in contract and civil damages cases. (Everybodys Legal Glossary)
Mini-trial is used often. Several courts try to get the parties to settle without the need for a regular trial by having a mini-trial in which the parties present their evidence and the court decides the outcome. When an outcome come cannot
be reached, the case is either sent to arbitration, or is just has to go to regular court. If an outcome is reached in the mini-trial, either party is can still decide to take the case to go to a regular trial regardless of what that outcome is. Like most ADR, mini-trial saves the court and the parties a lot of time, it also saves both parties a lot of money.
Summary jury trail is a shorten version of a regular jury trial. It is usually used for cases that will take a long time for a decision to be rendered. In a summary jury trial, there is a judge, only 6 jurors and there are not witness statements or experts to testify, the party only presents a summary of the case. After hearing both sides, the jury gives a verdict. The decision is not binding. The summary jury trial give the parties a forecast of how the case would go if taken to a regular trial. The point of it is to try to weed out some cases and let the party know if they should try to settle out of court or take the cast to the next level. It saves times.(Summary Jury Trial, 2002)
Neutral Evaluation is a form of ADR that is gaining popularity. It is kind of similar to mediation and arbitration in that a neutral person called an evaluator listens to both sides of the story and then tells both parties the strong and weak points of the case. The