The Pros and Cons of Alternative Dispute Resolution Essay

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This essay will provide a detailed examination of what Alternative dispute resolution (ADR) is, particularly mediation, the various techniques of ADR, the advantages and disadvantages of ADR; and whether or not courts should have the authority to compel individuals into undertaking mediation or other forms of ADR. This essay argues against courts having the power to compel litigants into mediation but may be afforded powers to encourage parties to go through mediation at first instance. This essay will base its arguments on whether courts should compel civil litigants to follow the ADR route upon the perceived advantages of ADR and its success rate. The contention of this essay is not that mediation is inappropriately used to settle…show more content…
Nevertheless, certain categories of ADR have been named and understood to involve the use of particular means and methods to produce the desired end result. These procedures include: negotiation, mediation, arbitration, med-arb, early neutral evaluation, settlement conference and conciliation to name a few. However this essay will concentrate on mediation as a form of alternative dispute resolution.

A potential advantage of ADR is that because parties voluntarily involve themselves in the process, and in most cases agree to the outcome there is rarely a difficulty with enforcement. Enforcement is a much greater potential problem of litigation where a party who has lost in court may be unwilling to meet judgement. At the same time, individuals have pointed to the advantages of the type of settlement which could be achieved by ADR over the costly and divisive nature of litigation.
Nonetheless ADR also has its disadvantages, according to Fiss “ADR implicitly asks us to assume a rough equality between the contending parties”, but notes that in truth settlement “is also a function of the resources available to each party to finance the litigation, and those resources are frequently distributed unequally”, here Fiss argues that the ADR process does not measure the unequal nature of the parties and that in some cases this inequality may bring about

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