ADR — A CASE FOR SINGAPORE
| Author | LIM LAN YUAN |
| Published date | 01 December 1994 |
| Date | 01 December 1994 |
| Citation | (1994) 6 SAcLJ 47 |
Conflicts can arise from a variety of perceived injurious experiences. They occur as individuals or corporations with different interests, goals and perspectives seek to achieve a maximum share of the values which society provides. Conflicts, once they occur, are sometime difficult to resolve. There is, however, a wide range of dispute processing alternatives available in every society to deal with these conflicts. Society and culture tend to influence the kinds of dispute resolution mechanism used. Ethnic and religious groups have historically established their own systems for dispute resolution. The methods of resolution which have been developed had been many and varied, both formal and informal, public and private. They range from physical contests and economic warfare to a variety of more social processes. The traditional formal method of dispute resolution is adjudication in courts using an adversarial approach in common law jurisdictions.
Since the 1970s new processes which emphasise consensual, informal dispute resolution are being developed as alternatives and supplements to adjudication. These new informal processes bring a pragmatic problem-solving approach to the resolution of disputes. They rely to a greater or lesser degree on negotiation between the parties to achieve a permanent settlement.
In a relatively short span of time, these alternative methods of resolving disputes have generated considerable interest, wide application and academic research first in the United States and now in Australia and also in the United Kingdom. Among other things, increasing concerns over costs, delays, loss of management time and long-term damage to commercial goodwill have encouraged the development of these new options for dispute resolution.
Alternative Dispute Resolution or ADR as it has become known in the United States became popular in the late 1970s. It has been heralded as one of the most far-reaching procedural legal reforms of the time. It was fostered by the crisis in judicial administration caused by the explosion in litigation, and by the increasing burden of legal costs. In 1978, former US Chief Justice Warren E Burger observed:
‘Today, American courts are hopelessly unequipped to handle the tremendous workloads imposed on them by our burgeoning population and modern technology’.1
Four years later in his Annual Report on the State of the Judiciary Chief Justice Burger said:
‘We must now use the inventiveness, the ingenuity, and the resourcefulness that have long characterised the American business and legal community to shape new tool…We need to consider moving some cases from the adversary system to administrative processes… or to mediation, conciliation and especially arbitration.
The adversary process is expensive. It is time-consuming. It often leaves a trail of stress and frustration’.2
Some commentators observed that the US culture of the 1960s and 1970s was tilted in favour of conflict.3 Americans have become, so they would say, unreasonably assertive, aggressive and rights conscious. There is an increased tendency for people to define personal problems and social troubles in terms of legal rights and obligations. There is no doubt that the Americans are increasingly making greater and greater demands on the courts to resolve disputes that used to be handled by other institutions of society.4 While they account for about 5 percent of the world’s population, they have some two-thirds of the world’s lawyers.5 As a result, legal justice becomes costly, slow and inaccessible because of the limited resources of the courts.
Although Americans have sought alternatives to formal legal institutions since colonial times, the major push for informal forums started in the early 1900’s when criticism of the efficiency of the legal system was made. This resulted in the proliferation of small claims, juvenile and domestic courts as well as public defender services and legal aid societies.6
The recent call to establish effective alternatives to formal dispute resolution mechanisms is part of the continuing efforts to address the problems of access to justice and participation in the legal system. ADR has already a long-standing reputation in the field of labour relations. What is now new is both the expansion of subject areas and the methods of dispute resolution. The conceptual beginning of the contemporary ADR movement may be traced to the Pound Conference after Roscoe E Pound, convened by the American Bar Association in 1976.7 The Pound Conference on the
Causes of Popular Dissatisfaction with the Administration of Justice in Saint Paul led to an interest in current court reform activity in reducing its workload and alleviating access to justice problems by providing efficient, less costly, and less adversarial forums.
ADR encompasses various dispute processing techniques other than traditional court case processing and includes arbitration, mediation, mini-trial and other less formal processes. It covers the whole spectrum of disputes although the best known field is in commercial disputes. Disputes resolved by ADR range from family, through neighbourhood and consumer disputes, insurance claims, construction claims, professional malpractice, industrial disputes and environmental matters to government contracts and even international trade disputes.
Writers have debated the semantics of whether ADR comprises all dispute resolution alternatives to litigation, in which case arbitration forms part of the ADR mechanisms; or whether ADR should be confined to explorations of settlement other than adjudications.8
In addition to the issue on what processes should be included in ADR, it has also been argued whether ‘alternative’ is the appropriate term to describe the various dispute resolution processes other than litigation. These ‘alternative’ methods should in fact be viewed as additional to litigation rather than as alternatives to it. The argument often raised is that by describing the various dispute resolution processes as alternatives to litigation it conveys the unfortunate impression that they are not part of the mainstream dispute resolution mechanisms.
The various forms of alternative dispute resolution may be categorised into those privately generated and those mandated or sponsored by the courts. The nature and characteristics of the main ADR techniques are briefly discussed below.
Negotiation is by far the most common form of dispute resolution. Most disputes are settled through negotiation prior to trial and, in many cases, long before they touch the court system. Negotiation is defined as a process that affords the disputants an opportunity to exchange promises and
commitments in an effort to resolve their differences and reach agreement.9 It enables the parties in dispute to find their common ground so that a solution can be derived that is acceptable to all. In the negotiation process the parties voluntarily discuss their differences and attempt to reach a joint decision.
Negotiation is an informal process and the parties retain control over the manner in which the dispute resolution should proceed. They are attempting to agree between themselves on a solution to their dispute rather than using a third party to impose a solution upon them as in the case of litigation or arbitration. Negotiation tends to be unstructured, ad hoc and responsive to the particular needs of the parties. It proceeds from the premise that solutions arrived at voluntarily by the disputants are generally preferable to those imposed by some third party. However, in certain circumstances in view of the differences between the parties, negotiation is not likely to take place if it is not facilitated by a third party. This is where a neutral would come in useful to assist the parties to meet and participate in the negotiation. The neutral could act either as a conciliator or mediator.
Conciliation and Mediation are often used interchangeably although there are differences between these two methods of dispute resolution. They are used to describe a system of dispute settlement in which an impartial third person attempts to help the disputants reach a mutually satisfactory solution to their problem, without the element of compulsion. Conciliation and Mediation are the favoured way to settle civil disputes in the orient, such as in Japan and China.
Conciliation may be defined as a process whereby a third party brings the disputing parties together in order for them to resolve their problems, but does not himself or herself take part in the process.10 In this context, the conciliator acts merely as a facilitator. Conciliation may also be used in the more limited context of bringing the parties together for the purpose of dispute settlement. In this context, the conciliator’s role is to assist the parties by recommending as to how they could resolve their dispute. He is much more involved and has control over the process. This role is similar to that of a mediator.
Mediation can be defined as a voluntary process within which the mediator facilitates the disputants to negotiate their own solution to their dispute by...
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