Dispute Resolution Processes

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This paper will examine when it is appropriate to attempt alternative dispute resolution (ADR) processes for disputes and conversely when it is fitting for matters to be decided in a courtroom with black-robed judges and well dressed lawyers. Complementing the correct ‘intervention [courtroom, facilitative ADR or another form of ADR] at the right time, price and place with the right disputants’ is not necessarily an easy task (Wade 2010, p. 13) and the line separating alternative dispute resolution processes and judicial intervention can be blurred especially as judicial officers conduct, refer or mandate parties to participate in ADR (Sourdin, 2009, p. 190). Proof that fine panelled courtrooms may not be the answer to
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But ADR is much more than that. The ‘consensual interaction between the disputants’ during an ADR process is how conflict is resolved (Street, 2002). Whereas a court determination ‘takes over responsibility’ for the matter (Heilbronn et al, 1996, p. 262) and ‘imposes’ an outcome that may not be palatable to either party (David, 1991, p. 4).

A decision made in a traditional courtroom may attempt to remedy the fallout from a dispute but it may not solve the problem that caused the conflict in the first place. When there is a need for the parties to a dispute to continue to have a relationship (for example in families and workplaces) failing to address the issues that caused the conflict in the first place may mean that it hasn’t been resolved and this may lead to further conflict. If the ‘serious [and] important needs’ of parties in dispute are not met this can ‘compound…’ the problem (Zehr, 1985, p. 1).

In addition to the monetary costs associated with court action and ‘tremendous social costs’ there are also ‘psychological costs associated with anxiety and hostility [and]… lost opportunities for productive, cooperative endeavors’ (Burgess, 1989 as cited by Spencer and Hardy, 2009, p. 669). Alternative dispute resolution can decrease the ‘transaction costs’ connected with legal action (Burgess, 1989 as cited by Spencer and Hardy, 2009, p. 669) as parties attempt to work together
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