Posted: July 9th, 2022

Critically discuss how the courts should encourage mediation

Critically discuss how the courts should encourage mediation and other ADR options in appropriate cases

Critically discuss how the courts should encourage mediation and other ADR options in appropriate cases
Mediation and other Alternative Dispute Resolution have a wide range of benefits in dispute resolutions as compared to adopting the criminal justice system and thus the court needs to encourage conflicting parties to adopt other dispute resolution strategies. Alternative dispute resolution options include negotiation, arbitration, collaborative law, conciliation, and mediation. The normal judicial and criminal justice system comes along with challenges and barriers that make it impossible to offer a sustainable solution to solving disputes. However, mediation and ADR approaches provide approaches and strategies that ensure that disputes and conflicts among different parties are handled most appropriately. In mediation and ADR strategies the solution to issues of conflict is realized through close interaction between the conflicting parties and the mediators or other independent third parties to ensure that amicable solutions for the conflicts are realized. The mediation and ADR are implemented in stages and processes to ensure that justice, fairness, and equality is realized through the decisions made or the solution for different problems. Equally important, in the judicial system strict procedures and rules are followed and decisions can be predetermined based on the evidence present and the rule of law but the process does not consider the social and legal aspects of the conflicting parties. Under the mediation and ADR, the conflicting parties and the staff involved in mediation have great freedom that ensures that they can have control over their cases thus presenting great levels of flexibility. Every alternative dispute resolution strategy adopted has its advantages and benefits as compared to the following the judicial process and thus the conflicting parties need to adopt the ADR strategy that favors them based on the process they want, outcome and the current and future aspects of the conflicting parties. There are different advantages associated with the adoption of mediation or ADR as opposed to the judicial system and process and thus courts need to devices policies, best practices, and approaches that encourage the public or the conflicting parties to adopt alternative dispute resolutions.
How courts should encourage the adoption of mediation and other ADR options in cases
Courts and the entire criminal justice system need to devise ways, strategies, and approaches to encourage conflicting parties to seek alternative dispute resolution to address their different issues as opposed to always using the court system due to the advantages and benefits realized (Hensler, 2003). The courts need to make it clear to the public that the results and outcome of court cases end up tarnishing reputations and damaging relationships while the ADR results in solutions that sustainable decisions that maintain relationships. Lawsuits are steadily increasing to the point that they result in wastage of resources, talent and time thus overwhelming courts and the judicial system thus inclining the courts to urge conflicting parties to utilize ADR (Bingham, 2004). The alternative approaches to litigations are have been credited for effectively ending legal disputes, solving long-standing disputes, offer win-win solutions to bitter and old fights as opposed to leaving all the parties damaged. For instance, the use of corporations pays over $20 billion annually to litigation attorneys as opposed to adopting ADR that are effective and less expensive. The direct cost associated litigations can be effectively measured but the indirect costs such as diverting personnel from productive activities, and destroying profitable relationships result in great losses (Stipanowich, 2004). The court needs to create awareness to the member of the public on the disadvantages associated with adopting courts in dispute resolution as opposed to the ADR thus making it possible for the public and the conflicting parties to adopt the ADR in handling their differences.
The courts need to adopt an ADR mindset that is free from the adversarial legal system in the course of solving disputes. The adversarial legal system is characterized by formalities and complications act as barriers in the course of achieving justice and fairness for the conflicting parties (Van Epps, 2001). The court should instill the idea that conflicts need to be transformed to ensure that conflicting parties solve their current dispute and continue with their relationships. Long term relationships between different parties are valuable and thus they need to be maintained even in the existence of a conflict (Spain, Larry, and Kristine, 2001). Conflicts are normal and current In any relationship between different parties and thus they should be addressed to make the relationships better and sustainable. The litigation process is a heavy toll on the conflicting parties and thus the parties need to seek alternative dispute resolution to ensure that the involved parties are not distracted from their main commercial operations and other engagements. It is important to note that many lawsuits are settled out of court even after spending substantial time and resources in courts thus making the court processes unnecessary due to wastage (Gu, 2010). The courts need to ensure that the members of the public are aware there are better and sustainable dispute resolutions that can be adopted in addressing different issues. The public needs to know that adopting a court system to handle their disputes is costly and mostly fails in offering satisfying solutions and the parties end up adopting out of court strategies to address their issues of conflict. Therefore, the court system needs to create a mindset that ADR offers a better solution to their conflicts as opposed to the judicial system and process thus making members of the public or the conflicting parties prioritize alternative dispute resolution options.
The court and the judicial system need to prepare and present an ADR menu to provide the members of the public and conflicting parties with other options to dispute resolution as opposed to litigation processes (Ridley and Bennet, 2011). The ADR menu presents the types of cases and the best dispute resolution alternatives to ensure that as clients encounter such issues they can directly use the prescribed ADR options. Additionally, the ADR menu enables the members of the public to know how they work, things they can achieve and not achieve as well as why they exist. The ADR menu presents the conflicting parties with information on the different ADR options making it possible to make the choice based on the existing conflict and the desired outcome (Menkel, 2001). Different conflicts can be effectively handled using different and specified ADR options thus the choices need to be made with caution. On the other hand, the conflicting parties would have different outcomes such as the end of their relationship, partly existence with the relationship and fully restoring the relationship and all this is determined by the choice of the ADR. Additionally, in the case, that the conflicting parties have issues in the choice ADR option the court staff will take them through the different ADR option giving details of each in terms of their processes, aspects, advantages, disadvantages and why they exist (McAdoo, Bobbi, and Art, 2002). This fact ensures that the court staff can help the conflicting parties to settle on the ADR options to handle their case based on the wishes of the conflicting parties and the type of case in question. The presence of the ADR menu and the court staff enables the conflicting parties to make the best ADR choice to be used in the deliberation of the conflict until the best choice is achieved. Therefore, the court and the judicial system need to develop and design the ADR menu as part of creating awareness to the members of the public and the conflicting parties to empower them in making decisions on the ADR option to adopt in handling their cases.
The court needs to work with the conflicting parties and the members of the public in making the ADR choice through the formulation of ADR policy. Organizations in the corporate world are consistently involved in conflicts and thus they need to have an ADR policy to help them in making decisions through analyzing the existing conflicts and the desired outcome thus making it easy and effective decision on the ADR option (Singer, 2018). It is vital to note that no single ARD option is necessarily the best and at times there is no ADR method that can offer the desired results. The development of the ADR policy needs to consider different factors to offer an appropriate decision making path. First, commitment is ADR factors that need to be considered to ensure that the ADR choice made will effectively and appropriately from the stat to the end and offer a satisfying solution to the existing conflict (Shestowsky, 2004). Consequently, the relation factor of the ADR should be considered in settling a dispute to ensure it is mutually advantageous to the point of maintaining the relationship between the parties after the dispute is resolved. Furthermore, the ADR privacy factor needs to be considers ensuring the confidentiality of the conflicting parties in terms of qualified trade secrets and valuable proprietary information maintained thus not leaving them vulnerable. Moreover, the urgency factor of the ARD option needs to be considered to ensure that the disputes at hand are handled in time such that the organization’s time is not wasted. This factor ensures that the conflicting parties are in a position to resume their main and commercial duties. More so, the finances factor needs to be considered to ensure the disputes are solved and handled within the set budget such thus they do not end up overspending (Sternlight, 2006). The development of the ADR policy among the different organizations ensures that it serves the interest of the conflicting parties to the point they can come out of conflicts successfully. Therefore, courts need to play the vital role of helping organizations and members of the public to develop ADR policies to ensure that they can adopt the best ADR as conflicts occur in the course of their relations.
The courts need to encourage conflicting parties to adopt ADR options by offering a court-supervised ADR process to empower the process and instill a great sense of confidence. Different parties have fears in using ADR to settle disputes especially if they are the weaker parties as they question the integrity, equality, and fairness of the ADR processes (Blake, Brown and Sime, 2016). The weaker party needs the protection of the formal court thus they opt to sue the court or the judicial system to seek justice in the dispute as they are assured of fairness, equality, and justice in the court. Courts have a definite track record and trend of offering justice to the aggrieved parties despite their position and class and thus many parties seek the services of courts in addressing their disputes. In this regard, the courts adopt the supervisory in the ADR processes to assure that conflicting parties that justice and fairness will be maintained throughout the process. The involvement in the court in administration and supervision of the ADR option process eliminate the nervousness as courts sponsor authoritative arbitrator and arbitration organization and agencies. The fact that courts are involved in the ADR processes introduces the aspects of principle, complexity, stakes, and executive involvement which all are in the interest of justice. In this case, the principle aspect ensures that principles of justice are observed in the course of the ADR proceeding to ensure that no party is disadvantaged in the proceedings. Complexity means that there is the flexibility to ensure that an amicable solution is achieved like the use of the mini-trial works and approach to solving disputes (Dore, 2006). States means that there are smooth operations and success is achieved with ease by saving direct and indirect litigation expenses. The involvement of the executive ensures that there are greater participation form different levels such as attorneys in the interest of increasing chances of justice. The involvement of the court in the operations of the ADR operations ensures that principles of justice are upheld. The court system needs to ensure that the judicial and court system is involved in the ADR process instill confidence in the system and thus the conflicting parties can adopt the ADR option in handling different disputes and conflicts.
The government and the courts need to make more investments towards all the aspects of the ADR option for they will have substantial benefits in the long term concerning amicably solving legal disputes thus inclining conflicting parties to adopt ADR options. There has being a backlog of pending legal cases in the court and judicial system thus overwhelming the judges and the judicial staff (Barret and Barret, 2004). The court system needs to develop ideas to encourage the members of the public to adopt ADR in the cases they are in conflicts that can be handled outside the court. This approach ensures that the different and high number of court cases will be distributed between the different ADR options thus enhancing efficiency and effectiveness in the operations of the courts. Courts will be left with few legal cases to address and thus they will amicably handle them to the satisfaction of the public (O`Leary, Rosemary, and Susan, 2001). It is vital to note that the ADR option saves time, money and focuses on issues and thus it would be appropriate to invest in the to ensure that arising issues can be addressed to their effective conclusion. Money means for judicially need to be channeled towards the development and empowerment of the ADR in the interest of handling the many disputes and conflicts that can be settled out of the court. In this regard, the investments need to be made through training people and especially the court staff on the ADR options to ensure that they can take up roles that come with them. The training will ensure that they have knowledge and skills to handle cases and disputes under different ADR options. On top of the ADR personnel, the courts and the government need to invest in all the resources that will be used in the administration of the disputes and conflicts. Additionally, investments need to be made through the creation of public awareness to inform members of the society of alternative methods to court cases thus encouraging the public to adopt ADR in the case that conflict arises. Therefore, making relevant and effective ADR investments will attract the members of the public to adopt it as an effective alternative to addressing their disputes.
The courts need to encourage the members of the public and the conflicting parties adopt ADR by the documentation of its success and achievements to the members of the public. The courts need to publish on the success and achievements of the ADR option periodically to encourage members of the public to use it in solving their different disputes (Ver Steegh, 2008). In this case, the success that should be published is on their efficiency to handle disputes and reduce the court cases backlog, reduction of cost in administering and conducting operations in courts, specific successful cases handled through ADR and other milestones that have been achieved. It evidence that ADR has a wide range of advantages and benefits but the fact that the pubic is used to handling their conflicts and disputes through the court system does not realize the benefits that come with the use of ADR to solve disputes. Furthermore, the courts need to publish on positive and negative statistics that are associated with the adoption of ADR is to encourage the members of the public to adopt ADR in solving different disputes. For instance, the goods results need to be adopted such as the increased settlement rates thus improving the operations in the entire judicial system. On the other hand, the trends associated with the ADR need to be published such as the trends that are experienced with the adoption of ADR is handling disputes (Stromberg, 2006). For instance, the increased in the rate of adoption of the ADR options versus the decreased adoption of the court system will incline people in society to adopt ADR when confronted with conflicts. Moreover, high profile cases and disputes need to be publicized to create awareness on the existence and capability of the ARD in handling disputes as opposed to the court and judicial system. The publication and documentation of the achi8evement and successes of the ADR, as opposed to the court system, gives the idea excellent publicity thus attracting disputing parties to use ADR options.
The government and the courts need to draw a line between disputes that need to held addressed through the ADR option while those that can only be handled through the court system. The separation of the type cases needs to be mandatory thus inclining the members of the public to adopt ADR on cases that can be handled out of court (Land, 2008). The separation of courts based on the sections they can be addressed and handled ensures that the heavy burden bestowed on the judiciary is reduced such that only a few cases are lefts to be handled under the court system. It is important to note that the court system is characterized by bureaucracies that make the courts to spend a lot of time and resources of specific cases and thus cases that can be handled out of court should be left out of the court system. This fact ensures that the court system has adequate cases to handle since overwhelming it with cases will result in inefficiency and delays. Therefore, cases that can only be handled by the case should be introduced to the legal system such as cases with public interests, crime or fraud or assault cases. This ensures that courts have enough time and resources to effectively offer justice in such cases. On the other hand, cases that can be handled out of court need to be addressed through the ADR options unless otherwise directed by the courts. This approach ensures that the high number of conflicts are appropriately handled thus saving on time and resources in the interest of the conflicting parties and the members of the public (Goldberg et al., 2014). The courts that can be handled under the ADR include commercial disputes, landlord-tenant cases, and other minor cases. The separations of the cases should be done based on the severity, level of implication, public interest in the case and if the cases are criminal or civil. The separation draws a distinct line ensuring that the ADR options or the court system can take their role as the dispute arise thus ensuring that amicable solutions and decisions on cases are upheld.
Conclusion
It is clear that the adoption of ADR in dispute resolution is a better option in some cases as compared to the court or judicial system and thus the courts need to ensure that the members of the public or conflicting parties are inclined or encouraged to adopting ADR in the dispute resolution cases. The court thus needs devices strategies, approaches, and best practices to ensure that members of the public are increasingly encouraged to adopt ADR as a dispute resolution strategy. The court needs to make it clear to the society that parties wishing to have continued relationships after the dispute need to adopt ADR as opposed to the court system as the court system ends up tarnishing reputations and damaging relationships. The court needs to introduce the ADR option culture by creating an ADR mindset that ensures that ADR is adopted due to the complications and formalities associated with the court system. The court needs to have an ADR menu backed with court personnel to help in advising the conflicting parties on the ADR option to adopt in addressing their conflicts. The courts need to enable and help organizations and conflicting parties to draw an ADR policy that guides them on the ADR option to adopt in the case of conflict in the course of normal operations. The court needs to offer supervision and administration roles in the course of the ADR option proceedings to ensure that fairness, equality, and justice is observed in the interest of all [parties involved thus validating and improving the ADR options. The government and the court need to make appropriate investments in ADR personnel and resources to ensure that disputes are handled effectively thus attracting members of the public to adopt ADR in place of litigations. The courts need to enhance the ADR publicity through documentation and publication of success and achievements for the members of the public to see and experiences thus adopting ADR options. Finally, the government in conjunction with the courts needs to draw a line on the cases that should be handled under the courts’ system and those that need to be handled under the ADR options thus inclining and encouraging conflicting parties to adopt ADR. Therefore, the courts and the government need to put the effort into ensuring that members of the public are inclined and encouraged in incorporating ADR in their dispute resolution.

References
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