Alternative Dispute Resolution (ADR) Notes

Case:

Harold Brady v Bruce Golding; trying to get the mediator to come to court and release confidential info, but it is illegal

☘️Definitions

Mechanisms that are used to settle disputes between parties instead of resorting to litigation.

Mechanisms used to settle disputes without having to go to court.

☘️Arbitration

Arbitration is a process by which a neutral third party hears the testimony of both parties to the dispute in a relatively informal setting. Unlike mediation, arbitration proceedings contain some elements of proceedings conducted in a court of law.

While in a court of law, the litigants do not have a choice in deciding who the adjudicator is, with respect to arbitration the parties to the dispute must decide and agree on the selection of an arbitrator or a panel of arbitrators.

After hearing and weighing the testimony, the arbitrator makes a decision that can be deemed binding and final on all parties + no appeal

Arbitrator is both judge and jury

Rules of evidence are less strictly applied (if bringing a document to court, you have to disclose it to the other party first, but in arbitration, the arbitrator can still push to use it)

The process of arbitration also allows all parties involved, including the arbitrator, to refer to statute and case law in support of their respective arguments.

Advantages

• the decision of the arbitrator may be enforced
• arbitration proceedings are less costly and less time-consuming
• the informal setting promotes relaxation of tensions between disputants.

☘️Mediation

Governed by Part 74 of the CPR (Civil Procedure Rules) of Jamaica

Like arbitration, mediation also employs the services of a neutral third party, referred to as the mediator, who most often acts as a shuttle between the two parties, communicating the position of the disputants to one another as they try to reconcile their differences towards the achievement of a settlement.

He facilitates the discussion with the aim of arriving at solutions

Parties must sign an agreement to mediate, which is them agreeing to comply to a number of things including:

*proceedings is confidential (neither party can disclose to any outsider what happened

*agree to absolve the mediator from liability in relation to proceedings (can’t sue him for doing his job)

The setting is informal

The mediator acts as both judge and jury, holding separate meetings/caucuses (with the different parties) at which further clarification may be obtained as regards the position of the respective parties with a view towards suggesting possible advances by which agreement may be reached.

These caucuses are conducted in private and the findings are not revealed to the other side unless each party approves/confidential

The mediator cannot force them to settle only implore them to

Advantages

• it is time- and cost-effective
• confidentiality is maintained
• fairness and flexibility are promoted
• it has shown reliability in terms of compliance with the final decision. In some jurisdictions mediation is now mandatory in some civil proceedings.

Table Comparing Arbitration and Mediation

PROS OF ADR

1.It improves and quickens the pace of litigation

2.It promotes early and fair resolution of disputes (instead of waiting 2 years, 2 months)

3.Reduces the cost of litigation to the parties and court system (don’t have to pay lawyer which is expensive since its per time spent, copying cases for court, etc)

4.Improves access to justice (allows for those who doesn’t like going to court a means

5.It allows the parties to express their matters confidentially

6.It maintains the quality of litigation outcomes

7.It allows fairness and flexibility (everyone can say their peace, no specific time, can be anywhere or whatever time they agree, no scary judges, or police officers watching you)

8.Reduces backlog of cases

CONS OF ADR

1.Not legally binding (mediation)

2.Mediation can be difficult if either or both parties withhold vital info

3.If mediation fails to achieve a positive result then the cost and time spent would be wasted

4.With mediation either party can withdraw from the process at any time

5.If the parties use an unskilled mediator, it can result in an unproductive resolution

6.All parties must agree to a resolution on the matter, in order for guaranteed results