Arbitration Mediation and Other Adrs in the Judiciary Essay

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Alternative Dispute Resolutions and Their Important Role in Expanding the Judiciary Process for the Public

Alternative dispute resolutions (ADRs) can come in a variety of forms, such as arbitration, mediation, case conferencing, neutral evaluation, parenting coordination, summary jury trials, or collaborative family law. Such procedures typically require less formality and occur in a more confidential setting. In such manner, the participants can bypass the court room, save money, and move more rapidly to a settlement without resorting to the process of litigation.

Arbitration is an ADR process in which an arbitrator who is a neutral third party hears the arguments from the two disagreeing parties. The two sides may present their arguments and their evidence before the arbitrator, who listens and then determines the outcome. The process is much more informal than a trial. For one, there is no jury, and presenting evidence is not as strict a process as it is during litigation. There are, however, two types of arbitration. There is non-binding and binding arbitration. In non-binding arbitration, either party may pursue litigation if it does not agree with the decision of the arbitrator. In binding arbitration, the two disagreeing parties agree that neither will sue following the outcome of arbitration; in other words, both parties surrender any right to appeal the arbitrator's decision.

Case conferencing is a situation wherein the two disagreeing parties meet with a judge or his/her representative in order to narrow or whittle down the issues within the disagreement so that the case, as it goes forward, can be focused more tightly on a single issue. In some cases, case conferencing can lead to a total resolution of the disagreement and there is no need to go to trial. In other cases, some of the attendant issues can be resolved and the trial will proceed but at a less cumbersome heft.

Mediation is a process in which a mediator acts as a neutral party to the two disagreeing parties and the three work towards a solution that all can agree upon. Unlike an arbitrator who listens and decides the case, a mediator makes no decision. The mediator's role is strictly to act as a facilitator: he helps the two disagreeing parties to come together and attempt to resolve their differences. Mediators tend to be used in family or community disputes or in business organization disagreements. Mediation can often be effectively used so that there is no need for the parties to go to trial as the mediator is able to help the parties settle and come to terms. Sometimes, however, mediation is not a good process; for instance, when one side has substantial or considerable command over the other, mediation may not allow the weaker or inferior party to adequately assert his claims.

Collaborative family law is an ADR process that is designed to alleviate the stress associated with divorce. It allows a couple going through a divorce to conclude the process without the necessity of entering a courtroom. This process provides the two parties the proper guidance and legal protection in order to see that needs are met. In the case that one or both parties of the divorce choose to see the suit carried out in court, the legal team used in collaborative family law must be replaced with a new team. Thus, once this process is begun, it behooves all participants to continue on to a negotiated settlement. In cases where domestic abuse is a concern, this ADR may not be the best course of action, considering that collaboration is a necessary part of the process and that amicability is much more desirable state than fear of abuse for this particular alternative dispute resolution procedure.

Neutral evaluations occur when a third party acts as a neutral expert in order to listen to the two sides in a hearing that involves a considerably truncated argument. The expert on the particular case dispute subject matter hears the two sides and, based on his or her expertise, tells the two parties what the most likely decision in a courtroom would be based on what the two parties have presented. The neutral evaluator does this with the goal being for the two parties to reach an agreeable compromise. In this case, the evaluator can guide the parties, if they like, towards arranging a settlement.

Summary jury trials act as a preview trial, a run-through in which a jury acts in an advisory capacity, hearing the abbreviated arguments of the two disagreeing parties and then providing a decision that is non-binding (though the two parties can agree ahead of time that the decision be binding if they so choose).

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Typically a summary jury trial gives the two parties an idea of what a jury would decide should the case be brought before one in a real trial.

Parenting coordination is a process that is meant to facilitate conflict-resolution between parents and children. The two parties may, with the court's permission, use a parenting coordinator to develop a parenting plan that can provide a suitable situation in which healthy relationships between parents and children can be developed.

ADRs have become increasingly popular over recent years. For instance, in New York City nearly 12,000 ADR cases were processed in 2009, up from 8,500 in 2005 ADR Case Outcomes, n.d.). However, it is not just in the traditional court system of American that ADRs have become increasingly popular. All over the bureaucratized world, alternative dispute resolution processes are seen more frequently. Even in the developing world, this is occurring, as courtroom trials are eschewed for more intimate and less formalized proceedings that cost less and can be conducted with less tension and at a faster pace (Fiadjoe, 2004).

Yet as Carrington (1984) notes at the beginning of the ADR movement decades prior to its surging popularity today, the alternative dispute resolution movement drew much criticism from legal professionals and social critics. They viewed ADRs as "banner" under which "at least three different aversions unite" -- an aversion for the "law itself," for lawyers, and for "judicial procedures" (Carrington, 1984, p. 298). All three of these aversions are understandable and justifiable in terms of a dichotomy in which the bureaucracy of law conflicts with the needs of society.

While Carrington's (1984) concern is that the ADR may "deprofessionalize the law," the fact remains that the law in the past thirty years has become so unwieldy that more and more people see the benefit of settling their disputes without recourse to it (p. 301). Indeed, recourse to the law has become increasingly viewed as last alternative when all else, ADRs included, fail.

At the same time, some in the judicial branch have lauded the ADR as a way to restore public trust in the judicial services of the nation (Eisenberg, Wohl, Guerin, 2013, p. 1112). Chief Judge Bell, for instance, "increased public trust and confidence in Maryland's courts" by promoting "the advancement of various dispute resolution processes such as mediation and community conferencing" (Eisenberg, Wohl, Guerin, 2013, p. 1112). This is one instance in which the traditional judiciary recognizes its ineffectiveness in addressing the needs of the public through the use of the traditional law courts and recommends the expansion of ADRs as a way to address those needs. ADRs essentially were used by Chief Judge Bell to restore the public's trust in the judicial process by creating an abbreviated form in which trial law could be bypassed in favor of a more "user-friendly" method of obtaining a conclusion to a legitimate dispute that would otherwise linger in the bowels of justice for an extended period of time.

The time mechanism is perhaps one of the most important features of the ADR. The Constitutional right to a speedy trial (Sixth Amendment) is clearly no longer even possible in the American court system. Thus, the ADR stands out as the best option in terms of settling disputes in an orderly manner.

One recent famous example of this is the case of the NFL versus Tom Brady in what was widely known as Deflategate. Brady was accused by the NFL of tampering with the air pressure of the balls and was suspended by the league. Brady appealed the decision and the federal judge Berman heard the arguments of the two sides in what was an instance of "super-arbitration" with the federal judiciary acting as final arbitrator between the NFL and the Patriots (Belson, 2015).

Arbitration is one of the most popular forms of ADR and is frequently used to settle disputes, such as labor disagreements between unions and employers. In the case of employee Lee represented by his union and the USPS, arbitration was a method that allowed the two disagreeing sides to come to a conclusion. This case is worth examining in full to understand how the process is set in motion.

At the USPS, the rules regarding discharge for off-duty conduct at the time when Lee was employed as a mailman were as stated: Under rule 661.53, employees were prohibited from….....

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