BLAW (Chapter 3).docx - BLAW(Chapter 3 LO1 Examine the alternative dispute resolution(ADR methods Alternative to Court Action there is a need for

BLAW (Chapter 3).docx - BLAW(Chapter 3 LO1 Examine the...

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BLAW (Chapter 3) LO1: Examine the alternative dispute resolution (ADR) methods: Alternative to Court Action: there is a need for alternatives because litigation is costly, has long delays and there is a likely of dissatisfaction with the results. - Alternative dispute resolution (ADR) can work hand in hand with litigation. Negotiation and mediation can be used at any stage in the litigation process, including post-judgement. Alternative Dispute Resolutions (ADRs): are any strategies used as a substitute for court action qualifies as a method of ADR, but there are 3 main approaches: 1. Negotiation: When the decision making is left in the hands of the disputing parties. 2. Mediation: when a neutral party assists the parties in coming to resolution on their own. 3. Arbitration: When a third party makes a binding decision in the matter under dispute. Advantages of ADR versus Litigation: Control: rarely does the court ever compensate the parties for all their time, money and personal and businesses resources expended. ADRs help parties maintain control over the problem solving [process and appreciate the disadvantages of placing the matter in the hands of lawyers and the court system. Delay: the litigation process can take a while because of the pre-trial process and problems in scheduling court personnel and facilities. ADRs are short in process because the process is controlled by the parties themselves and there are less procedures. Distracting: the long court process can take away valuable time from a person’s business. They must oversee all of the process, providing information along the way. Expense: there is faster resolution of the matter is the less need for more lawyers, which relates to cost savings. Indirect considerations, such as privacy from publicity and as well reduced risk of an adverse judgement. Litigation is also adversarial by nature while alternative dispute resolution can actually strengthen the relationship between the 2 parties. Disadvantages of ADR : ADR cannot ensure a fair hearing: the mediator for example cannot guarantee that the other party has brought forward all of their evidence or information. Unlike the court system where the judge has the power to subject the lawyers to present all of their evidence before the trial begins. ADR does little to overcome the power imbalance: if there is a power imbalance not a lot can be done. 1a: Negotiation: involves the parties or their representatives meeting to discuss the problem to come to an agreement as to how it should resolved. The process is cooperative and non-binding and either side can withdraw from the negotiations if the other is being unreasonable. It may not always be possible to find a win-win situation but satisfactory results often involve both sides cooperating to minimize their losses.
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  • Spring '08
  • RobertDelorme
  • Tax Court

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