Dear Advocates,
Thank you for the letter you sent to me seeking my legal opinion on Alternative Dispute Resolution (ADR) Mechanisms.
I will hereby give the different methods of ADR and their advantages.
ADR is a mechanism which involves parties agreeing to resolve their disputes thorough a process other than litigation. It is an effective way to resolve disputes because it can be less expensive, more confidential and more effective than litigation.
There are many different methods of ADR, which include:
1. Arbitration
This is a process where the parties involved in a dispute come into agreement to have their their dispute decided by one or more neutral arbitrators. The arbitrators render a binding decision.
Advantages:
a) Confidentiality: Arbitration proceedings maintain high level of confidentiality.
b) Finality: The agreement reached is binding and enforceable and this gives finality to the dispute.
c) Flexibility: The process is very flexible. Parties having a dispute can choose their arbitrators. The process can also be tailored to suit the parties needs e.g by setting rules of engagement.
d)Expertise: Arbitrators with specific industry knowledge (based on the nature of dispute) can be chosen. This ensures that the dispute is resolved by someone well knowledgeable in the area of dispute.
2. Mediation
This is a process where a neutral third party comes in to assist the parties having a dispute to reach a mutual agreement.
Advantages
a. Confidentiality. This method has high level of confidentiality and parties in dispute can openly discuss their issues without fear of disclosure.
b. Parties retain control: Parties have more control over the outcome and actively participate in the decision making process.
c. Cost effective: The method is cheaper as compared to litigation.
d. Time saving: The process can be finalized in a very timely manner and saves alot of time.
e. Preserves relationships: This process is focused on finding a common ground when resolving a dispute.
3. Negotiation
In this method, parties to the dispute meet and have a direct dialogue with aim of reaching mutually acceptable agreement.
Advantages:
a) Control and flexibility: Parties have full control over the whole process, including the terms of settlement.
b) Cost-effective: Negotiation can be a cost-effective method since it involves fewer formalities and does not require third part intervention.
c) Preserves relationships: This process allows parties to preserve their relationships and work collaboratively to find solutions.
4. Conciliation:
This method involves a neutral third party, the conciliator, who assists the parties in reaching a settlement.
Advantages:
a) Facilitated communication: The conciliator helps parties to dispute communicate effectively find resolution to their dispute..
b) Impartial guidance: The conciliator helps parties find a common ground and provides them with guidance and suggestions for resolving the dispute.
c) Confidentiality: This method is confidential and parties can have open discussions without fear of public disclosure.
The best method of ADR will depend on the specific nature and circumstances of the dispute. I would very much recommend that you discuss these options with your clients and consider their preferences and needs.
Sincerely,
Raphael Mutiso.
Legal Consultant