Question 1
Various forms of Alternate Dispute Resolution (ADR) have been used for decades in the United States to resolve minor civil disputes. What are examples of civil disputes that should be resolved via ADR? Should they be subject to mediation or arbitration?
Reply 1
Alternative Dispute Resolution is the use of methods such as mediation and arbitration to resolve a dispute instead of litigation. Alternative Dispute Resolution (ADR) is a way to settle disputes without litigation. Using ADR procedures can avoid the acrimony that often accompanies extended trials and allows parties to understand each other’s position and craft their own solutions. “The most common forms of ADR for civil cases are conciliation, mediation, arbitration, neutral evaluation, settlement conferences and community dispute resolution programs” (Carver, Vondra, May-June 2004). Facilitation assumes that the parties want to reach a settlement. The negotiation is done through telephone contacts, written correspondence, or via e-mail. Facilitation is sometimes used by judges at settlement teleconferences exploring alternatives to taking the dispute to trial. Mediation is more formal but still leaves control of the outcome to the parties. An impartial mediator helps the parties try to reach a mutually acceptable resolution to the dispute.
Arbitration is the most formal of the ADR procedures and takes the decision making away from the parties. The arbitrator hears the arguments and evidence from each side and then decides the outcome of the dispute. In my opinion Arbitration is good for cases where the parties want a third person to settle the dispute but want to avoid the cost of money and time that accompanies a court trial. Arbitration also resembles litigation in that many parties use arbitration as a springboard to negotiation. Parties who know that their dispute will wind up in arbitration often fail to commence serious negotiations until shortly before or shortly after the arbitration proceedings have begun. Frequently, negotiations will continue simultaneously with the arbitration proceedings, meaning the parties’ representatives will discuss settlement outside the hearing room while the hearing itself is underway inside. Arbitration can even expedite negotiations, since the parties know that once the arbitrator has issued a decision, the decision is typically final and rarely appeal-able.
Reply 2
Alternative Dispute Resolution (ADR) is gaining legitimacy in the United States as a way for litigants to work through disputes. This process aims to create a more convenient, quicker and, lower-cost alternative to the traditional judicial process. In claims where the plaintiff asks for damages below 50K and 100K, the case can begin with ADR. (Neubauer & Meinhold, 2017, p. 303)The textbook references the high dollar settlements reached in the BP oil spill case and how their settlements were reached through ADR. It was the “largest experiment in alternative dispute resolution ever attempted. (Neubauer & Meinhold, 2017, p. 305) Other civil matters that could be handled under the ADR model are custody agreements and divorce settlements. The type of process used is dependent on the case and the individuals involved.
Our family can speak from experience when working through custody agreements through mediation. My step-daughter’s agreement was constructed through mediation between my husband and her mom thirteen years ago. Both still had attorneys present, but no judge or attorney was leading the mediation. Mediation requires an agreed-upon third party to help the disputing parties work through the process together. They assist in resolving conflict by supporting communication between the litigants. The process can be voluntary, and there is no requirement of the mediator to determine an outcome. (Neubauer & Meinhold, 2017, p. 189)
Under arbitration, there are no judges or formal settings but third-party attorneys, either appointed or agreed upon by the parties, hear the evidence presented to them. There are no witnesses, only the parties involved and the evidence they provide. The arbitrator will issue their ruling based on the evidence presented. If either party is not happy with the outcome, they may reject the recommendations and request a trial in the traditional setting. One built-in safeguard against this is the requirement that parties that reject the results must reimburse the court. (Neubauer & Meinhold, 2017, p. 303)
Question 2
Chapters 10 and 11 address civil procedure. Do you believe the rules guiding civil litigation are properly structured to lead to the resolution of disputes? Which aspects of civil procedure could be improved?
Reply 1
In U.S. Common method, there are eight stages that work as devices of suit that administer how to begin claims, how to run them, and how to complete them.” (Neubauer, D. W., and Meinhold, S. S. (2013), p. 323. These means incorporate a documented objection of the solicitor, administration of the protest to the respondent, a composed or formal reply from the litigants given to the area representative for recording, the revelation interaction where the two players trade data appropriate to the current case, movement solicitations to the appointed authority, pretrial meeting, settlement, preliminary, and implementing judgment. (Neubauer, D. W., and Meinhold, S. S. (2013), p. 325. These advances work in a manner to assist with recognizing which cases are reasonable to continue further towards a preliminary or a settlement. Of the eight stages recorded, I am more worried about the disclosure cycle after evidence is heard, each side gives a closing argument. In a jury trial, the judge will explain the law that is relevant to the case and the decisions the jury needs to make. The jury generally is asked to determine whether the defendant is responsible for harming the plaintiff in some way, and then to determine the number of damages that the defendant will be required to pay. If the case is tried before a judge without a jury, known as a “bench” trial, the judge will decide these issues or order relief to the prevailing party. In a civil case, the plaintiff must convince the jury by a “preponderance of the evidence” (that it is more likely than not) that the defendant is responsible for the harm the plaintiff has suffered. By applying rules of evidence, the judge determines which information may be presented in the courtroom. So that witnesses speak from their own knowledge and do not change their story based on what they hear another witness say, they are kept out of the courtroom until they testify.
Reply 2
” The rules of civil procedure are strikingly different from those governing criminal prosecutions. For one thing, civil procedures are much more extensive, because they cover a much broader range of legal matters. Just as importantly, rules of civil procedure do not have a constitutional base. The extensive due process guarantees that protect those accused of violating a criminal statute are not applicable in civil proceedings. Civil litigants, for example, are not covered by the Fifth Amendment’s protection against self-incrimination, which means that plaintiffs and defendants alike can be compelled to make statements before trial and can be forced to testify during trial” ( Neubauer p.316). I believe the rules guiding civil litigation are somewhat properly structured to lead to the resolution of disputes due to the interaction of both parties communicating and coming to an agreement. I believe it should remove the majority of divorce cases from the adversary court system and create an alternative that gives families access to needed services, counseling, and financial planning advice in an environment that encourages them to resolve their owndisputes at the end of the day
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