ALTERNATIVE DISPUTE RESOLUTION (ADR)

“ADR refers to any means of settling dispute outside the courtroom. ADR typically includes

early neutral evaluation, negotiation, conciliation, mediation, and arbitration. So the constituents

of ADR mechanism are negotiation, mediation, and arbitration respectively [3].”

“Negotiation is an informal method of resolving a dispute where by the people involved to

communicate directly with each other to try and reach and agree. Negotiation should be seen as a

first step in resolving a dispute [7].”Features of negotiation can be rationalized as initially it is a

voluntary and discretionary procedure as parties are uncompelled neither to partake nor to

change the final outcome. And also there are no stipulated statutes so that the parties are capable

of arrogating the rules they select, if any. So this is an informal process [1]. “Mediation is an

ADR method with neutral person helping the parties finding a solution to their dispute, since the

mediation is less rigid than both litigation and arbitration [4].” The features of mediation can be

explicated as firstly the both parties can competent enough to initiate or to terminate the entire

process. They contemplate whether to deviate or not from the procedure as there can’t be

benchmarked against any constitution. Next, The mediator should be lack of bias by acting

impartially. Appending more to that point the mediator is not entitled to initiate any preliminary

relationship with the party, should not have any vested interest which will result in an

intrusion.“Arbitration is a procedure in which a dispute is submitted by agreement of the parties

to one or more arbitrators who make a binding decision on the dispute [8].” Sri Lanka precisely

has the right to indulge of her procurement of installing the initial Institutional Commercial

Arbitration Center in South Asia by inaugurating of the Arbitration Act No .11 of 1995 [5]. The

features of arbitration are concisely articulated as arbitration is a consensus procedure as it has to

emerge in a circumstance where both parties are compatible for consistency. This is an intimate

procedure so whatever the disclosures which are yielded to the arbitratory tribunal are rigidly

enforced to preserve the confidentially. Arbitration is a neutral procedure which pledges that no

party has favorable issues over the opponent party. Both parties have the emancipation of

recruiting potentially expertise arbitrators. Both parties will perceive a sense of conquest and

procurement. This perception would forefront both parties into mutual satisfactory.

Advantages of ADR System can be precisely brought out as, Inexpensive in general and one of

the crucial consequences of ADR can be familiarized as the speedy response. You can expect to

resolute the conflict in a transient period of time. Being not adversarial the ADR system is

initiated implement less damages to ensure that subsequently both parties will try to deal with

each other again by preserving relationships. And privacy will be sustained as ADR only

summoned can present in sessions. This method can be ensured as most the satisfactory method

to preserve esteem and prestige of a particular party [2]. Disadvantages of ADR can be assumed

as, both parties would not be eager to resolute a dispute by each side making concessions. In a

circumstance where a party has an ethical correctness the ADR system might fail because of the

unwillingness to compromise. ADR cannot be acquainted as pertinent always. For example in a

circumstance where illicit intrigues such as extensive criminal wrong doings, ADR may be

inefficacious. And also if the concerned matter is intricate and complicated in spite of other

circumstances ADR method can be highly expensive as litigation, and also in such circumstances

the system will not be swift [6].

When pertaining on the ADR system into the Sri Lankan context, in according to the views of

our group, ADR can be prerequisite to the Sri Lankan legal system; the first rationale which we

reflected on was the cost factor. As Sri Lanka was deterioted by a civil law for years, currently

Sri Lanka is appraised under lower middle income developing nation .So that majority of the

populations’ economic levels are interrupted and impaired to opt litigation. Secondly the court

system in Sri Lanka was poor in augmentation so that they are hardly accessible geographically.

Thirdly as Sri Lanka is distributed with non valuable and ineffective court system which results

in people losing confidence on court system cannot be precluded. On the perspective of the

lawyers, the majority have protested ADR as a sensible substitute for litigation as ADR is lack in

strength to resolute disputes. But they can familiarize a tendency to opting ADR in the corporate

sector more than in litigation because of cost issues, speedy response etc. What our group

members recommended to enhance the calibers of ADR are, training and guiding the arbitrators/

mediators and negotiators, subsidizing, furnishing incentives etc. While the lawyers distinctly

advocated strengthening up the Arbitration Act, Mediation board Act, to develop more centers

for ADR, broaden the language into Tamil and Sinhala, so in other words government should act

more prominent role to take the maximum of the ADR advantages. In conclusion as ADR

underpins and reinforces social harmony which acts as a solidity to build up a nation. So the

government should take necessary steps to turn ADR in to a coherent procedure.

APPENDIX

REFERENCE.

1. DEPARTMENT OF JUSTICE OF CANADA. (2014) Dispute Resolution Reference

Guide. [Online]. Available from:

http://www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-sprd/res/drrg-mrrc/03.html. [Accessed: 29th

July 2014].

2. LAW COURT. (2012) Benefits of Alternative Dispute Resolution. [Online]. Available

from: http://www.localcourt.lawlink.nsw.gov.au/localcourts/adr/benefits_adr.html.

[Accessed: 27th July 2014].

3. LEGAL INFORMATION INSTITUTE. (1992) Alternative Dispute Resolution. [Online].

Available from: http://www.law.cornell.edu/wex/alternative_dispute_resolution. [Accessed:

24th July 2014].

4. LEGAL INFORMATION INSTITUTE. (1992) Mediation. [Online]. Available from:

http://www.law.cornell.edu/wex/mediation. [Accessed: 28th July 2014].

5. NORTON ROSE GROUP. (2010) Sri Lanka. [Online]. Available from: http:

http://www.nortonrosefulbright.com/files/sri-lanka-26275.pdf. [Accessed: 25th July 2014].

6. SIXTH FORM LAW. (2000) Benefits of Alternatives to the courts advantages and

disadvantages. [Online]. Available from:

http://sixthformlaw.info/01_modules/mod1/1_1_civil_courts_adr/1_1_2_alternatives/

10_advantages_disadvantages.htm. [Accessed: 27th July 2014].

7. THE LAW SOCIETY OF NEW SOUTH WALES. (2009) Disputes and mediation.

[Online]. Available from:

http://www.lawsociety.com.au/community/disputesandmediation/ADR/index.htm.

[Accessed: 24th July 2014].

8. WIPO. (1967) Arbitration. [Online]. Available from:

http://www.wipo.int/amc/en/arbitration/what-is-arb.html. [Accessed: 26th July 2014].

THANK

YOU.