By C. Dennis Morrison, Q.C.ContributorTHE Dispute Resolution Foundation recently concluded a course of training for mediators. A number of lawyers participated and interest in this increasingly popular form of alternative dispute resolution (AADR) continues to be high.
The traditional method of dispute resolution has been, of course, through the courts. But the notoriously slow pace of litigation, the expense of it and its demand for resolutely adversarial postures, have all worked together over time to promote greater interest in and use of alternative means to resolve disputes, such as mediation.
In a recent discussion with Professor Robert Bennett Lubic, a highly reputed and published law professor, professional arbitrator, conciliator and mediator, he identified four basic categories of ADR, as follows:
Settlement by negotiation between the parties
Settlement based upon suggestions by a third party or parties (most commonly known as mediation or conciliation)
Settlement by determination of a third party or parties (known as arbitration)
Settlement by persuasion of a third party or parties (the newest form only recently being developed).
NEGOTIATION
This is also a traditional ADR method, often going hand in hand with litigation, the pace and expense (already referred to) of which often drives the disputants to negotiation as a shorter route to resolving their differences. A successful negotiation, resulting in a deal upon which the parties are able to shake hands and return to their everyday lives, can produce a great feeling, which can ultimately be far more satisfactory than a judgment pronounced in court at the end of a long and often acrimonious trial. Even at the proverbial tenth hour (and sometimes particularly then!), negotiations between the parties can be very fruitful and the parties and their advisers should always be encouraged to keep an open mind in this regard.
MEDIATION OR CONCILIATION
These suggestive forms of ADR have long been favoured in eastern nations such as China and Japan, where there is a traditional antipathy to any type of confrontation. Like a successful negotiation, a successful mediation or conciliation exercise will produce a result that both parties can claim as their own and can therefore be a highly satisfying method of dissolving a dispute. The Conciliation Service at the Ministry of Labour is well known in the field of industrial relations and has achieved many notable successes over the years.
While there has been a tendency to regard mediation and conciliation as being more appropriate processes in relation to labour and/or family type disputes, the fact is that they are often equally well suited to disputes that are largely or even purely commercial in nature. Many such disputes are, after all, mainly about money and men and women of commerce who understand the value of money - in time and over time - can and do often benefit from the assistance that a third party can provide them to do what they ordinarily do naturally, that is, focus on the bottom line.
ARBITRATION
Arbitration is, like litigation, a determinative form of ADR. But it has the advantage, it is said, of being speedier and enables the parties to, so to speak, choose their own judge. Though now widely accepted, one of the problems with arbitration in our system is that the potential for challenge of an arbitrators award in court can result in a prolonged route to ultimate resolution of the dispute. Most developed arbitration centres (such as, for instance, London) operate under legislation which seeks to promote arbitration by precluding parties who have entered into agreements to arbitrate from going to court - in other words, making the arbitrators decision final. If Jamaica is ever to become an arbitration centre in this part of the world, as there has been in past some talk that it might, we would certainly have to go this route and in this regard the United Nations Committee on International Trade Laws (UNCITRAL) Model Law will provide a ready precedent.
NEWER FORMS OF ADR
In this still developing field, new variations are constantly emerging. In our discussions, Professor Lubic described a Amini-trial - a process in which the parties over a day or two put their respective cases to a neutral person chosen for the purpose. No evidence is taken and the hearing is of a relatively informal nature. At the end of it, the neutral person makes suggestions or recommendation to the parties, based on his or her assessment/prediction of how the matter is likely to be determined if it were to go to full arbitration or to trial. This is, of course, persuasive only, as the recommendations are non-binding, but if the neutral person is of sufficient stature one can readily see what impact his or her conclusion is likely to have on the parties.
All of this has now to be seen in the exciting new context provided by the information technology revolution and globalisation. So it is an entirely natural development that the growth of international e-commerce should now be spawning commercial disputes resolution online worldwide. It's a brand new world!
C. Dennis Morrison, Q.C. is a Partner of DunnCox, Attorneys-at-Law
