Professional Documents
Culture Documents
24/01/2011
Lesson Content
ADR generally What is ADR? Methods of ADR Structures of ADR Why ADR? Arguments for and against ADR Evaluating ADR The Place of ADR in the Law-School Curriculum
2
24/01/2011
Learning Activities
Getting to know each other Recording of expectations and aspirations Agreement on ground rules Agreement on course structure course content and delivery methods and timings Agreement on mode of assessment Lecture Active brainstorming and discussion
24/01/2011 3
24/01/2011
Lesson 1 Objectives
By the end of this lesson you should be able to
1. Define ADR 2. Distinguish ADR from other forms of Dispute Resolution 3. Name the different methods, types and structures of ADR 4. Explain the juridical basis of ADR (particularly in Kenya) 5. Evaluate the place of ADR in Dispute Resolution (particularly in Kenya) 6. Explain the place of ADR in the Law School Curriculum (particularly in Kenya)
24/01/2011 6
24/01/2011
Readings
1. 2. 3. 4. 5. 6. 7. 8. 9. Owen Fiss Against Settlement 93 Yale L. Review 1073 1984 Menkel-Meadow,Carrie Whose dispute is it anyway? Sternlight Jean R. Ellinghausen Don Jr. What you need to know about dispute resolution 2006 American Bar Association Section of Dispute Resolution http://www.abanet.org/dispute/draftbrochure.pdf Moffitt Michael, Three Things to be Against-Settlement not included 2009 Fordham Law Review . (http://ssrn.com/abstract=1412282 Court ADR Library Research article http://courtadr.org/library/effective CPR Order 46 Rules 1-18 Carrie Menkel-Meadow. Empirical Studies of ADR: The Baseline Problem of What ADR is and What It is Compared to (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1485563)
7
24/01/2011
What is ADR?
From John Millers article in your reading list at page 1 Alternative Dispute Resolution (ADR) is an umbrella term that refers to various methods used to resolve disputes without resorting to litigation (Nolan-Haley,1992).
24/01/2011
What is ADR?
The American Bar Association (ABA, 1999) defines ADR as, an array of non-binding and binding dispute resolution methods that involve the use of third-party neutrals to aid the parties in contract controversies via a structured settlement process.
24/01/2011
24/01/2011
What is ADR?
Alternative Dispute Resolution (ADR) is a collection of processes used for the purpose of resolving conflict or disputes informally and confidentially. ADR provides alternatives to traditional processes, such as.........; however, it does not displace those traditional processes (http://www.cdc.gov/od/adr/about.htm)
24/01/2011
10
What is ADR?
Alternative dispute resolution (ADR) ...... includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. http://en.wikipedia.org/wiki/Alternative_disp ute_resolution
24/01/2011
11
What is ADR?
The term "alternative dispute resolution or "ADR" is often used to describe a wide variety of dispute resolution mechanisms that are short of, or alternative to, full-scale court processes. The term can refer to everything from facilitated settlement negotiations in which disputants are encouraged to negotiate directly with each other prior to some other legal process, to arbitration systems or minitrials that look and feel very much like a courtroom process.
USAID ADR Practitioners guide 1998
12
24/01/2011
24/01/2011
What is ADR?
The field of ADR (originally known as alternative dispute resolution in the United States) has more recently been called appropriate dispute resolution, or just dispute resolution
24/01/2011
14
Methods of ADR
First, methods for resolving disputes outside of the official judicial mechanisms. Second, informal methods attached to or pendant to official judicial mechanisms. There are in addition free-standing and or independent methods, such as mediation programs and ombuds offices within organizations
source http://en.wikipedia.org/wiki/Alternative_dispute_resolution
24/01/2011
15
24/01/2011
Types of ADR
2006 American Bar Association
1. 2. 3. 4. 5. 6. 7. Arbitration Mediation Negotiation Case Evaluation Early Neutral Evaluation Facilitation Family Group Conference 8. Mini-Trial
24/01/2011
9. Multi-Door Program 10. Neutral Fact-Finding 11. Ombudsman 12. Parenting coordination 13. Pro Tem Trial 14. Private Judging 15. Settlement Conferences 16. Special Master 17. Summary Jury Trial
16
Types of ADR
The United States Code (5 USC Section 571) defines ADR as consisting of:
conciliation; facilitation; mediation; fact-finding; mini-trials; arbitration; the use of ombudsmen, and any combination of the above.
Miller supra at p 2
24/01/2011
17
24/01/2011
18
24/01/2011
Some Definitions
Negotiation is a dialogue intended to resolve disputes, to produce an agreement upon courses of action, to bargain for individual or collective advantage, or to craft outcomes to satisfy various interests. It is the primary method of alternative dispute resolution. http://en.wikipedia.org/wiki/Negotiation Mediation is process in which a third party becomes involved in a content dispute between two or more editors in order to try to guide their discussion towards the formation of agreement: Arbitration is the hearing and determination of a dispute by an impartial referee agreed to by both parties.. the act of deciding as an arbiter; giving authoritative judgment; "they submitted their disagreement to arbitration wordnetweb.princeton.edu/perl/webwn
24/01/2011
19
HIGH
MEDIUM
LOW
20
Structures of ADR
ADR includes informal tribunals, informal mediative processes, formal tribunals and formal mediative processes The major differences between formal and informal processes are :a. pendency to a court procedure and b. the possession or lack of a formal structure for the application of the procedure.
Source http://en.wikipedia.org/wiki/Alternative_dispute_resolution
21 24/01/2011
24/01/2011
24/01/2011
22
24/01/2011
23
Why ADR?
(ADR) originally designed to challenge various aspects of formal litigation Brittle, rigid and binary outcomes, excessive cost and delay, limited bi-partisan and bi-lateral participation, emphases on the past and precedent, rather than future and more creative outcomes and relationships Per Carrie Menkel-Meadow (2009)
24/01/2011 24
24/01/2011
Why ADR
ADR Evangelists Settlement is synonymous with agreement or even deal breaking!
24/01/2011
25
24/01/2011
24/01/2011
30
10
24/01/2011
24/01/2011
32
11
24/01/2011
24/01/2011
Disregard for party policy Inequality of the parties leads to unequal bargain Influence of parties on the party nominated arbitrators Reinventing the procedural wheel takes away time tested and proven procedural safeguards
24/01/2011
36
12
24/01/2011
24/01/2011
24/01/2011
38
24/01/2011
39
13
24/01/2011
The Judiciary has been frequently in the news, and on almost every occasion, this arm of Government has been mentioned negatively
24/01/2011
41
24/01/2011
42
14
24/01/2011
24/01/2011
43
With the foregoing, and much more , in mind do you still think that the judiciary in Kenya is equal to the task of resolving the disputes?
24/01/2011
45
15
24/01/2011
24/01/2011
47
16
24/01/2011
24/01/2011
49
24/01/2011
50
17
24/01/2011
24/01/2011
54
18
24/01/2011
19
24/01/2011
24/01/2011
58
20
24/01/2011
24/01/2011
63
21