The movement towards Alternative Dispute Resolution (ADR) is increasingly being adopted by many countries and societies. This is not surprising as it is a logical and practical approach towards resolving disputes in a less time-consuming manner and more cost effectively.
It is cheaper than litigation, saves time and money, solves more than just the legal dispute, and considers the underlying issues. It preserves relationships, and avoids cases being continued by appeals.
There are no rules of evidence or procedures with mediation; it allows parties to create their own solutions.
Mediation agreements have a high compliance rate and are confidential – neither the mediator nor the parties can be compelled to disclose what was said at mediation.
It is a win-win situation – both parties win, because they determine the outcome.
While the two most common forms of ADR are arbitration and mediation, negotiation is almost always attempted first to resolve a dispute. It is the pre-eminent mode of dispute resolution. Negotiation allows the parties to meet in order to settle a dispute. The main advantage of this form of dispute settlement is that it allows the parties themselves to control the process and the solution.
Mediation is also an informal alternative to litigation. Mediators are individuals trained in negotiations, who bring opposing parties together and attempt to work out a settlement or agreement that both parties accept or reject. Mediation is used for a wide gamut of case-types ranging from juvenile felonies to federal government negotiations with Native American Indian tribes. Mediation has also become a significant method for resolving disputes between investors and their stock brokers. (See Securities Dispute Resolution).
Arbitration is a simplified version of a trial involving limited discovery and simplified rules of evidence. The arbitration is headed and decided by an arbitral panel. To comprise a panel, either both sides agree on one arbitrator, or each side selects one arbitrator and the two arbitrators elect the third. Arbitration hearings usually last between a few days to a week, and the panel only meets for a few hours per day. The panel then deliberates and issues a written decision, or arbitral award. Opinions are not public record. Arbitration has long been used in labour, construction, and securities regulations, but is now gaining popularity in other business disputes.
Against this backdrop, it was encouraging to see Guyana hosting its first mediation forum and Acting Chancellor of the Judiciary, Justice Carl Singh, made some interesting and pertinent observations.
Justice Singh made the observation that the older generation of lawyers “does not want to hear anything about mediation,” although it is deemed a “viable alternative to the litigation process.” On the other hand, looking around the audience, he found that a number of young lawyers were absent from the forum.
However Justice Singh correctly declared: “Steps are taken to introduce reforms in the legal system, and you see an unwillingness to participate; an unresponsive attitude. But there are dangers, because, as the sun will rise tomorrow, mediation would become an established culture in our system. I am determined. So, those who don’t want to expose themselves, don’t want to participate…are going to fall by the wayside.”
He offered that the lawyers’ attitude has to do with the popular feeling that referring their clients to mediation will hurt them in their pockets. “And I believe it is the concern for their pockets that is responsible for many of them not being here this morning; because there are those who conduct themselves ethically, but there are those who are concerned about their fees and are probably in the magistrates’ courts right now.
The negative response and attitude of the legal fraternity to ADR are most unfortunate, because as professionals one would expect that they would offer the best advice and options to their clients rather than putting the dollar in front. It is precisely such attitudes that hinder the development and advancement of societies.
Nevertheless, persistent efforts should be made to convince those lawyers, who are opposed to ADR, to convince them of the benefits of this new approach to conflict resolution, because as Justice Singh correctly pointed out,  those who do not want to participate “will fall by the wayside.”