Inter-alia the Courts’ primary role is to make, interpret and define law and safeguard the public interests and social values. Courts for instance interpret what the documents depicted in terms of true intension of the parties had in their minds at the time they entered into the contract. In contrast, ADR has come into more widespread use believing such formal processes have failed to afford real justice which would mean that parties deserve something more than what courts traditionally offer. It should not however be misled because ADR is not a panacea, anathema or a substitute to Courts.
ADR provides a spectrum of mechanisms, one of which is mediation. A mediator may provide the parties with an evaluation; be it social, legal or technical (in the exception of construction for instance) and may inform the parties of the likely outcome of civil litigation in case they fail in settlement. A mediator may even sometimes make his own interpretation based on whatever bona-fide facts and evidence available to him as befits the situation. It all depends on the circumstances involved in the issue under consideration. Obviously, the flexibility in what a mediator can do is in stark contrast to what Courts can do.
The theory of ADR posits that the parties own both the dispute and outcome in that a shared solution will endure a better solution than an imposed one. The presence of the neutral gives the disputants a sense of a standard of fairness, a standard against which they can measure their own position. A neutral may bring new ideas, of course within an acceptable tolerance being mediators, and assist the parties in forming a solution. Disputants may eventually “tailor” a solution to the problems they consider important and relevant. However, the ways a mediator may adopt in framing out a case may be different to that of another mediator and similarly the outcome. This so-called ‘tailoring’ should not however prejudice the accepted public norms, social values as well as the legal, ethical and equity principles existing in our societies for years.
However much we debate, the alternative ways of resolving disputes have made an impact on the legal arena, both positive and negative. On the other hand, if ADR is extended to resolve difficult issues of public law, many argue that there is a real reason for concern. This is apparently because of the tendency to use non legal values to resolve important social issues while allowing private parties to determine public rights. Here, the question is that we should be careful not to endanger what the law has so far accomplished.
In the meantime, Courts refer cases on a voluntary or mandatory basis before getting to trial. For any ADR to be truly voluntary, Courts should use discretion only when the willpower of the parties’ remains. The outcome would still vary on the Court’s persuasiveness such as any sanction that makes participation and conduct of the process obligatory. This will restrict free choice of the disputants. On the other hand, courts should be sensitive when power-imbalances exist, not necessarily to protect the parties’ rights but to enhance enough room for self-determination.
When tapping the potential of ADR therefore Courts should first test the appropriateness, resistance and willingness prior to encourage and facilitate in the dispute resolution. It will help secure key characteristics of ADR such as participation in good faith, autonomy, choice and self determination. In contrary, mandating ADR without consent of the disputed parties or court connected ADR with imposed rules such as strict deadlines may dictate the outcome and prejudice the aim of laissez-faire amicable settlement.
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