Weaknesses Arbitration and Adjudication

This essay will analyse the strengths and weakness of using arbitration and adjudication processes as methods of conflict resolution. Arbitration is a technique of dissolving disputes or problems without necessarily going through a court process. Under this method, an attorney often recommends arbitration to their client as the most appropriate means of resolving a claim. In arbitration, the dispute gets submitted to a particular third party, regarded as an arbitrator, who then resolves the pending dispute after the two parties provide a presentation. Usually, the presentation can be in the form of a document which is passed to the arbitrator by each party1.

More occasionally, besides the submission of each side submitting a document, they also make their oral argument. Each side also usually has an attorney that makes the oral argument on their behalf. Sometimes the presentation includes some witnesses who also testify2. Adjudication, on the other hand, means the decision-making process which comprises of a third party which is neutral that is able to determine a resolution that is binding through a type of award or judgment2. The process of adjudication is conducted through different ways which occur mostly within a court system.

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The process can also occur outside the system of a court using alternative conflict resolution processes like arbitration, mini-trials and private judgment. However, an adjudication which is court-based is often significantly formal as compared to an arbitration process. The formation of another area of alternative resolution of disputes has caused many individuals to apply the word adjudication to mean disputes addressed within the court or litigation. The process of adjudication is involuntary and adversarial.

Therefore, the presentation of arguments is done in a manner that proves that one of the two sides is wrong while the other is right and thus causing a win-lose scenario4. In civil cases, a person or side which believes they are wronged known as the plaintiff files a legal charge against a defendant. In adjudication, someone sues somebody who they have a legal issue with4. Once they have been sued, both sides present their evidence and reasoned arguments in a proceeding which is court-based. In case the case undergoes a trial, both parties support the claims they have through a reasoned argument. After the arguments and evidence are presented, a jury or judge makes their decision.

Appeals may later be filed with the aim of getting the decisions to be reversed by a higher court. In case there is no filed appeal, the made decision remains binding on either sides or parties. Arbitration has various numerous strengths and weaknesses as a process of case resolution. Regarding the strengths of arbitration, both the parties involved in a dispute often agree on a single arbitrator. This provides both sides with someone who is trusted and who both parties have confidence in as they are believed to be fair and impartial6. Additionally, the dispute is usually resolved as early as possible because the arbitration date can usually be acquired much faster as compared to a court day or data.

The process of arbitration is also often less expensive. This less expense is partly because the paid fee to the arbitrator is usually lower than the paid fee to expert witnesses who are required to come to the trial and testify6. Most often, both sides split the fee to be paid to an arbitrator equally. Furthermore, there are lower costs incurred in preparing the process of arbitration as compared to preparing for the process of a trial. This less cost incurred for an arbitration procedure is partly because the evidence rules in this process are usually relaxed as compared to those of a trial process.

The relaxed rules allow the documents to be provided in place of witnesses coming to testify in the trial7. For example, in case a claimant is served by doctors that are out of the country, the expense incurred in bringing them to attend the trial or visiting outside the country to participate in a deposition process may become prohibitive for a process of a trial7. However, in an arbitration process, one can use their reports and records. Unlike the process of trial, that involving arbitration is usually a private in that in case both sides wish to be granted privacy then the conflict resolution can be kept as confidential as possible. In case of a binding arbitration process, there are often a reasonable or limited opportunities for both sides to file an appeal so that the arbitration process will become the end of a dispute7.

Therefore, the arbitration process provides finality, an award which is often absent in a decision made through a trial. However, arbitration also has some weaknesses as a method of dispute resolution. For instance, in the case of binding arbitration, both parties usually give up the right to file an appeal. Therefore, they end up lacking the chance to correct what they may consider an erroneous decision in the whole arbitration process. Besides, in case of a complicated matter but a modest money amount is involved, the fee paid to the arbitrator may become uneconomical8.

It may be less expensive to conduct a case in front of a judge within a General Court as this courts allow medical evidence to be presented via affidavits rather than paying a doctor to attend a hearing and testify8. Furthermore, the evidence rules in an arbitration process may inhibit the consideration of some evidence by a jury or a judge. However, such evidence may become considered by an arbitrator8. The decision of an arbitrator may thus be one based on data which a jury or judge would not have considered in a trial.

In case some specific data from certain witnesses are brought forward in a document, the opportunity of cross-examining the witness’s testimony is usually limited. Another limitation is that discovery can also be limited in an arbitration process. In fact, in litigation, the discovery processes require the party which is opposing, a business’s entity or person that is not pertinent to the case to offer certain documents or information. Consequently, many arbitration processes are not agreed to unless the sides have completed the discovery or are in litigation9.

By that period, the chance to evade costs through arbitration may be over. In case an arbitration process is required or is mandatory by a formed contract, the sides usually lack the flexibility of choosing arbitration only after both sides agree. A necessary or mandatory arbitration provides the chance for one side to force the other party to apply arbitration. In circumstances that arbitration depends on a single party for its repeat businesses, there is usually the possibility of abuse as well as the impartiality advantage becomes lost. The standard that an arbitrator uses is also not clear. However, the arbitrator generally is needed to obey and follow legislation requirements in the whole processes10.

Nonetheless, occasionally an arbitrator can carry out clear fairness of the positions of either the parties rather than following the stipulated law strictly10. This fairness may result in less favourable results for a side that is favoured through a rigid reading of the legislation. Even though this matter has existed since antiquity, it is argued that an arbitrator follows a case’s equity and a judge the law as arbitration became formed with the sole reason of securing the whole power equity10. Further, this consideration often becomes overlooked in examining the arbitration application.

Adjudication also has some advantages. The adjudication which is court-based particularly has its advantages. The alternative 1970s and 1980s conflict resolution movement became based mainly on encouraging other alternatives instead of litigation as well as resolution procedures that are court-based. Alternative procedures like arbitration and mediation were more constructive and useful as compared to litigation. Even though the argument over the form of justice that is better than the other is still raging, Singer (2018) claims that adjudication also has various negative characteristics. This process of conflict resolution has received various criticisms.

For instance, it is claimed that adjudication which is court-based is usually prohibitively expensive regarding monetary expenses thereby making it quite difficult for various parties to forward their complaints to their court. Moreover, in an adjudication process, the regulation of the procedure is removed from the disputant or the client as well as the delegated to the court and the lawyer13. The decision maker may also lack needed expertise in the field of the conflict. In many courts, the jury and the judges are usually generalists. Also, the court dockets usually become overbooked thus resulting in huge delays for cases to be heard.

Meanwhile, the issues which are unresolved can result in serious challenges for the involved disputant. Litigation also needs that individual’s issues become translated into issues which are legal, yet the decision made by the court concerning such issues do not usually respond to the actual nature of the problems14. For instance, problems might become framed based on money, where the actual issues are those linked to respect, trust or emotions which have not been dealt with in a process which is adversarial.

Moreover, courts are usually limited by the law concerning solutions which can be offered. When the issues that are underlying are not fully addressed, the decision may cause short-term settlement and not long-term solutions. Adjudication also causes a win-lose kind of result thus leaving a little possibility of the sides to develop integrative or collaborative solutions to pending issues, unless the sides settle their case out of the court instead of through a trial. Litigation usually drives sides apart due to its positional and adversarial nature, while efficient resolution usually needs that both sides come together15. The polarisation which occurs to the disputants also gets accompanied by some emotional distress.

Individuals enmeshed within litigation usually experience or incur direct costs more than the legal expenses. For instance, a disruption to a person’s businesses or the progression of an individual’s career can become damaging as well. Some disputes cannot become resolved through court processes as there are no courts that have clear jurisdiction which is accepted by the parties that are involved. This occurs many times in international disputes where a single or many parties fail to honour the international court authority. For example, the authority of the ICC or the International Criminal Court16. The adjudication process also has some advantages.

For instance, because it is usually a process that is adversarial, it is often able to provide clear benefits as compared to other options of conflict resolution. The adjudication process proponents claim that the procedure provides more consistent and fair resolution than other alternatives. Adjudication has occasionally received criticism as it is looked at like a process that offers individuals second-class justice. This second-class justice allegation is often based on the notion that procedures such as mediation have not become institutionalised as well as there are no clear standards or rules of practise which the processes are based17.

On the other hand, litigation or adjudication is usually grounded in the system of the public judiciary which has a wide range of regulations and rules17. There are also other advantages that the advocates of adjudication cite when campaigning for this conflict settlement method. The method of adjudication offers an imposed and final decision which the sides become obliged or mandated to follow. Alternative methods like mediation offer only arguments that are voluntary and which can fail easily. The litigation outcomes are usually, with no exception, enforceable and binding17. Even though the decisions of arbitration can also be enforceable and binding especially with support from the system of the judiciary, it only occurs if the parties that are participating agree on all parameters.

This situation is usually an important advantage where the process of conflict resolution lacks respect and trust, particularly between the involved parties. The application of an adjudication process that is court-based or litigation makes it possible to file an appeal. The ability to appeal further confers various benefits. For instance, regarding monetary settlement, the party which is winning can usually re-negotiate settlement until the appeal period to evade retrial or full reversal18. An appeal also makes it possible to reverse incorrect decisions that are made in the process. Occasionally, errors occur, or evidence which is prejudicial is allowed thereby tarnishing a possibly just outcome18.

Public adjudication, on the other hand, provides procedural safeguards which maintain each side’s due process as per the law. Of such safeguards, there is cross-examination, restraints on hearsay as well as other evidence rules, pre-hearing, enforced information sharing between parties and other constitutional and statutory protections which are under the due process umbrella. Procedural stipulations like these aid in ensuring that all adjudicated results are fair18.

All litigated decisions that are made are often precedent-based and authoritative. Decisions which are court-based are in theory based on the law principles or established norms which have been validated. Therefore, consistency is maintained later on in similar cases as well as better predictability is ensured concerning some future outcomes. An adjudication process that is court-based is often institutionalised thus meaning that the complaint party does not need any one’s permission to form a lawsuit against the other party19.

Since courts become funded by the state and do not depend on its customer satisfaction, they are allowed to issues decisions which can be disliked by both parties without the court fearing any possible reprisal. The adjudicative decision maker who is usually the judges is often selected via several publicly known processes which ensure only qualified ones occupy the position. Moreover, there are issues where short-term conflict settlement is needed. In cases which do not need a future relationship between the sides, their disputes only need to be settled. If a relationship between the parties is one which will be long-term, a resolution becomes preferred20.

In conclusion, the essay has demonstrated what arbitration entails by stating that it comprises dissolving disputes or problems without necessarily going through a court process. Under this method, it is clear that an attorney often recommends arbitration to their client as the most appropriate means of resolving a claim. In arbitration, the dispute gets submitted to a particular third party, regarded as an arbitrator, who then resolves the pending dispute after the two parties provide a presentation. On the other hand, adjudication has been illustrated as being the decision-making process which comprises of a third party which is neutral that is able to determine a resolution that is binding through a type of award or judgment.

It is shown that Arbitration allows both the parties involved in a dispute to agree on a single arbitrator thus providing both sides with someone who is trusted and who both parties have confidence in as they are believed to be fair and impartial. It has also been demonstrated that the adjudication process provides more consistent and fair resolution than other alternatives. It has come out apparently that both arbitration and adjudication have various weaknesses.

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Bibliography

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