Assignment 5- Chapter 21

Introduction

There are certain mechanisms or procedures that may be utilized for virtually any subject area

as a replacement to the court procedure. These mechanisms are arbitration, conciliation and

negotiation, which are important alternative dispute mechanisms. These procedures, however,

are commonly used in commercial law and labour law. Pertaining to commercial law matters,

an arbitration clause will usually be inserted into the relevant commercial contract. However,

in labour law matters, arbitration, where it exists, is often affected by statute. Though in

recent times, “the courts in the region have moved to a system whereby mediation is used as a

mandatory, preliminary mechanism for settling disputes” (Antoine, 2008).

Alternative Dispute Resolution

In the prior paragraph, the author grazed on the concept of alternative dispute mechanisms

but this paragraph seeks to elucidate this concept as best as possible. When one thinks of the

term ‘alternative’, we think of “something that is different from something else, especially

from what is usual, and offering the possibility of choice”, according to the Cambridge

dictionary. When one applies the aforesaid definition to the concept of alterative dispute

mechanisms, one can infer that an alternative dispute resolution encompasses the different

ways in which individuals can resolve conflicts without a trial. These processes, however,

must be acknowledged and accepted by the involved parties. A third party, a mediator or

arbitrator, is significant in this process as the third party employs a neutral approach to the

issue.

The main purpose of alternative dispute resolutions is to avoid litigation, taking legal action

or settling a dispute in a court of law. In the Commonwealth Caribbean, for example,

slowly changing. In accordance with Patricia and Michael Hirst, “ADR has the obvious

advantages of saving scarce judicial and other resources.” Additionally, it provides litigants

and potential litigants with a number of advantages, for instance, ADR is usually cheaper than

litigation, and often produces quicker results. The involved parties, in some instances, want to

avoid the publicity associated with court proceedings and it may be more beneficial for the

parties involved to choose a form of dispute resolution that will enable them to arrive at a

mutual and acceptable solution.

Classification of Law

In the Commonwealth Caribbean, there are three main ways in which law is classified. These

categories include by the subject matter, by function and by concept. With regard to subject

matter, law may be classified by tort, contract and real property and by function, law can be

classified by substantive, procedural, civil and criminal. Lastly, private and public law can be

found under the classification of concept. Law can be further be classified using different

approaches, take private and public law for instance. Private Law can be further classified

into the Law of torts, Law of contracts and the Law of real property and Public Law can be

further classified into the Constitutional Law, Administrative Law and Criminal Law.

The author would advise Mr. Klong to seek redress in the Law of torts and the Dispute

Resolution Act. The author advises this because, firstly, the Law of torts is a branch of law

that deals with civil suits and is considered to be a form of restorative justice as it seeks

remedy losses or injury by providing monetary compensation. Common torts include: assault,

battery, damage to personal property, conversion of personal property and intentional

infliction of emotional distress. In this case, Mr. Klong would have experienced conversion of
personal property since Mr. Bold’s patrons used his footpath and driveway as parking spaces.

Additionally, Mr. Klong would have experienced intentional infliction of emotional distress

as Mr. Bold was aware that Mr. Klong was uncomfortable in this situation but Mr. Bold chose

not to take heed of Mr. Klong’s complaints. Secondly, the Alternative Dispute Resolution Act

offers alternatives to the formal processes involved in a court trial thus, the trial judge advised

both parties to seek some form of alternative dispute resolution to resolve the conflict as it

promotes the efficient and effective operation of the courts of the state to secure the speedy,

just and inexpensive determination of civil actions filed in the courts of this state.

The classification of law is important as it brings a uniform set of research, precedent and

experiences and procedures to bear on a case. It allows attorneys to know precisely where to

conduct research that will have a solution for a certain issue. Take for instance, an attorney

will conduct legal research in the law of torts if they believe that the law controlling your

issue can be discovered there. The classification of law is also important as it makes a variety

of options to clients and attorneys available in their attempts to seek redress.

Arbitration

Arbitration involves referring a dispute to a third party for a decision, which is usually termed

an ‘arbitration award’. This award is then binding upon the parties. Arbitration clauses are

commonly found in commercial and partnership agreements in order to achieve a speedy

settlement of the point at issue. An arbitration clause usually requires that the involved parties

should refer to any dispute which arises between them to an arbitrator, whose findings as to

the facts of the dispute will then in most cases be final and binding (Hirst, 1998). The

arbitration clause, therefore, is considered to be perfectly valid and the courts will not

interfere with it only if any arbitration clause does not seek to out the jurisdiction of the
courts completely, by denying their right to rule on the relevant law will, however, be invalid

in that respect. In other words, there must always be a right to refer issues of law to the

courts.

Arbitration would be suitable method to use in the resolution of this dispute as proceedings

under arbitration can be much cheaper and quicker than if the dispute were heard in court,

however, an arbitrator is a professional and will demand professional fees. Moreover,

proceedings under arbitration can be held in private at a fixed time which suits the involved

parties, which is often important in commercial dealings.

Litigation

Litigation is a process whereby right-based disputes are resolved through the court system. In

other words, litigation refers to the actions between opposing parties working in the interest

of enforcing or defending a legal right. Although, litigation is used in reference to a trail, it

also involves the gathering of information in preparation for a case, negotiating and settling.

Litigation may be the most suitable method to resolve this dispute for several reasons. These

include, litigation being more formal, structured, and regulated than arbitration due to the

parties having to follow the law, rules of evidence and the procedures of the court.

Additionally, litigation delivers a clear outcome that cannot be misconstrued by either party,

or by members of the public; clearance is ensured. Another reason why litigation may be the

most suitable method is because this process is conducted through the courts so there is a

public record of the case thus, it can never be disputed. To express it differently, litigation is a

very transparent process.

Like arbitration, the conflicting parties refer to a neutral third party, in this case it is called a

mediator. The mediator helps the involved parties resolve their issues collaboratively. This is

a non-binding process which simply means that the mediators, though highly qualified with

conflict resolution skills and legal knowledge, don’t have the jurisdiction to make a final

decision. Thus, the final decision is a reached agreement between the conflicting parties.

One might opt for mediation due to its appealing advantages. These advantages include the

cost-effective nature of meditation, as it typically costs less than litigation and arbitration.

Unlike litigation, mediation involves fewer formalities such as attorney fees, court costs and

other legal expenses, which results in reduced costs for the involved parties. Mediation also,

as aforesaid, gives the involved parties flexibility and control which allows the parties to

actively participate in mediation and express their perspectives and needs. The flexibility

associated with mediation allows for creative solutions, that might not be available in a court

setting, which leads to more tailored and satisfying outcomes. Lastly, mediation saves time

due to its relative quickness compared to litigation. Mediation allows the conflicting parties

to work at their own pace which expedites the resolution process and allows the parties to

move forward more promptly.

Conclusion

To summarize, the concept of alternative dispute resolutions was examined, and the

mechanisms of dispute resolutions were mentioned. The areas of law in which the appellant

may seek redress were stated, using facts from the scenario given. The author also carefully

advised the appellant through this literature in which the areas of arbitration, litigation and

mediation were thoroughly examined.