Parg 2: Confidence in using Alternative Dispute Resolution
mechanisms
Considering that Alternative Dispute Resolution mechanisms have
different roots in civil law and common law Legal system (A) it will have
different significance in the business milieu (B)
A-The roots: Common law v Civil law experience
Alternative dispute resolution methods have increased not only in
many common law jurisdictions like in the US, but also, a confirmed observation
is that well-intentioned efforts have been made to introduce ADR into the legal
cultures of civil law jurisdictions like in Europe and Tunisia.
On the one hand, the American experience has shown that these
techniques have converted an initial unfamiliar field into a standard area of
the practice of law. For example, in some US states, lawyers who ignore the
possibility of employing ADR techniques in the interest of their clients may
find themselves at risk of discipline or malpractice liability and other US
states have amended their rules of professional conduct for attorneys to
include an obligation to be informed about the various techniques and to
consider them when advising their clients151.
151 In a matter involving or expected to involve
litigation, a Lawyer should advise the client of alternative forms of dispute
resolution which might reasonably to pursue to attempt to resolve the legal
dispute or to reach the legal objective sought. Section 2.1 of the Colorado
Rules of Professional Conducts, as amended effective 1 January 1993. Same in
1993 the Minnesota Supreme Court promulgated Rule 114 of the General Rules of
Civil Practice. This rule requires attorneys throughout Minnesota to become
more familiar with ADR and more
Accordingly, ADR has reached a high degree of professionalism
reflected not only by a growing number of specialized lawyers but also by the
emergence of specific ADR companies providing a variety of services. As it was
notably quoted by Goldberg, Sander& Rogers, the origins to the move towards
alternatives to litigation in dispute resolution have legal and business
dimension:
At the legal level, not only the quest for alternatives simply
reflects the desire to improve the quality of processes and solutions in
dispute resolution but also it has a dimension of enhancing democracy through
community involvement in dispute resolution and through a greater access to
justice.152
Some have argued that the wide implementation of ADR in the US
has been caused by factors predetermined by certain peculiarities of the
American legal system, including the
structure of the courts, the types of civil proceedings, and the
nature of the legal profession.
Briefly quoted by Stephen J. Ware, "the emergence of ADR was
essentially a reaction against and a response to the inadequacies of the
litigation process and the resultant heavy backlog of cases that choked the
courts from the lowest to the highest levels"153. Same, Former Chief
Justice Warren E. Burger, who helped generate the burgeoning rise in ADR, has
explained in 1984 that "we needed to correct our erroneous dependence on
adversarial processes as the primary means of resolving
disputes"154.
The move towards alternative techniques in business disputes and
the development of corporate ADR programs was also stimulated by a desire to
reduce the enormous transaction costs of litigation and to reach more
constructive outcomes to find business solutions for business problems.
Unlike the US, ADR still in its infancy in the majority of civil
law countries like in France and Tunisia. Civil law countries are only now
proactive in considering and using ADR. McAdoo, B. and Welsh, N.,
"Does ADR Really Have A Place on The Lawyer,s Philosophical Map?",
Hamline Journal of Public Law and Policy, Spring, 1997
152 GOLDBERG, S.B. ; SANDER, .E.A, & ROGERS, N.H,
" Dispute Resolution, Negotiation, Mediation and other processes", New York ,
Aspen Law and business Journal, 1999
153 Ware, Alternative dispute Resolution , Op.cit note page 5
154 Chief Justice Warren E. Burger, Address at the
Annual State of the Judiciary Report to the American Bar Association (Feb.
1984), in 52 U.S.L.W. 2471, (1984)
developing an interest in these methods in the corporate world.
Like in most European countries, Tunisia, inspired by the French civil law
system which main distinguishing feature is that legislation is the primary
source of law. The question that may arise is whether the concept of ADR is
contrary to civil law philosophy.
Disputes between people arise irrespective of the legal system
existing in their country. In our opinion, ADR should be considered as a legal
construction, a certain type of thinking leading to compromise and peaceful
resolution. Contemplating the current position of ADR in civil law countries,
we cannot say that these alternatives could be applied to any country
regardless of local rules. While European policy maker do not always follow the
US example, there is widespread admiration within Europe for American ADR in
business practices.
Regarding the business level, business people in general often,
have a tendency to consider ADR as a better means to resolve cross border
business disputes rather than resorting in the first instance to litigation.
They not only need expeditious justice at a reasonable cost, but also to be
able to maintain a business relationship with the opponent while resolving a
particular dispute. Moreover, most disputes between businesses involve a
contractual problem. People in business accept that disputes are inevitable.
Even when a written contract is drawn carefully, problems will arise over the
interpretation of a clause. Once a dispute occurs, most business people prefer
to resolve it quickly, privately, inexpensively, and informally.
Often for the first time, parties have the opportunity to
experience a capable presentation of the other side,s case; and they
have a window of opportunity to identify common interests and points of
agreement, and to build mutually acceptable settlement options to disputed
issues.
Maintaining a business relationship while involved in
litigation is difficult, if not impossible. ADR seek to produce a negotiated
settlement between the parties in a manner that encourages common sense and
practical
solutions and preserves business relationships. It gives the
parties in a dispute total control over the outcome, removing the uncertainty
that comes with a court case. It cannot be denied that when an ADR option is
implemented, business people will take advantage of the major benefits of ADR
vs. litigation, which include: speed, choice and expertise of impartial
neutrals, informality and flexibility. Equally important, lawyers and business
managers more and more negotiate across political and cultural boundaries in
today's professional environment. Transactional lawyers interested in
international business can poorly afford a narrow-minded approach to deal
making and problem solving in a world where economic globalization leads to
demand effective, non-domestic forums for dispute resolution.
ADR procedures have in the international business milieu
differing significance from European and American perspectives
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