WHAT IS ADR?
Alternative Dispute Resolution can be defined as all forms of dispute resolutions other than litigation or adjudication through courts.
A DISPUTE:
A dispute could arise from a personal or commercial relationship.
It could also arise from interactions with the state and its organs.
ADVANTAGES(Benefits) OF ADR:
An appropriate ADR process would:
1. be less expensive than court proceedings.
2. resolve the dispute more quickly
3. be more flexible and informal than court proceedings
4. be able to preserve the relationships that are important to the parties.
5. create a more imaginative, effective and satisfactory “win-win” resolution to the dispute.
DISADVANTAGES (Shortcomings) OF ADR THROUGH COURTS:
- the high costs of litigation means that access to justice is denied to the vast majority of the population.
- the long delays inherent in court proceedings often means that relief comes too late.
- the rules of civil procedure are rigid and cumbersome
- the adversarial nature of court proceedings often leads to a breakdown of personal relationships that are valuable to the parties
- the court progress is limited in that the legal remedies it can provide often produce a “win-lose” resolution to a dispute.
FUNCTION OF ADR:
is to provide an effective dispute resolution method that meets the needs of the parties in resolving their dispute.
THE EVOLUTION OF DISPUTES:
- Conflict
- Power
- Transformation
- Grievance
- Dispute.
- CONFLICT:
a conflict arises when the parties perceive a divergence in their needs and interests.
REASONS FOR A CONFLICT TO ARISE:
- difference in real or perceived interests
- structural reasons
- different values or norms
- access to and control of the information
- the meaning of the information
- personal reasons
- POWER:
-power is not an objective possession, but it flows from the relationship between the parties.
-it is unstable and dynamic
-as the relationship between the parties changes and adapts to the changing circumstances, so does the power relation change.
-it can thus be said that power and conflict are interrelated.
- TRANSFORMATION:
a conflict is transformed and becomes a manifest through a three-step process:
1. NAMING: whenever a conflict becomes excessive and cannot be tolerated any longer, it is named.
-the catalyst is said to be a “PIE” Perceived Injurious Experience.
-when the conflict tolerance threshold is exceeded as a result of the PIE, it will be articulated and named.
2. BLAMING: when the PIE has been articulated and named, it becomes a grievance, and the other party is blamed.
3. CLAIMING: is when the person who feels wronged claims a remedy from the other
- GRIEVANCE:
A grievance can be said to be a partly formalised expression of a conflict.
-the conflict has been named and someone has been blamed.
- DISPUTE:
A grievance evolves into a dispute when the manifested conflict and resultant grievance are not addressed appropriately.
FACTORS THAT INFLUENCE WHETHER A CONFLICT ESCALATES INTO A GRIEVANCE AND EVENTUALLY, INTO A DISPUTE:
- unrealistic expectations
- poor communication
- time limitations
- wrong choice of process
- lack of legitimate procedure
- Poor interpersonal skills.
