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Advantages and Disadvantages of ADR

Advantages and Disadvantages of ADR

by Sanjida Islam -
Number of replies: 0

Advantages and disadvantages:

Parties often seek to resolve disputes through arbitration because of a number of perceived potential advantages over judicial proceedings:

  • In contrast to litigation, where one cannot "choose the judge",
  •  Arbitration allows the parties to choose their own tribunal. This is especially useful when the subject matter of the dispute is highly technical: arbitrators with an appropriate degree of expertise (for example, quantity surveying expertise, in the case of a construction dispute, or expertise in commercial property law, in the case of a real estate dispute can be chosen.
  • Arbitration is often faster than litigation in court.
  • Arbitral proceedings and an arbitral award are generally non-public, and can be made confidential
  • In arbitral proceedings the language of arbitration may be chosen, whereas in judicial proceedings the official language of the country of the competent court will be automatically applied.
  • In most legal systems there are very limited avenues for appeal of an arbitral award, which is sometimes an advantage because it limits the duration of the dispute and any associated liability.

Some of the disadvantages include:

  • An arbitration agreement are sometimes contained in ancillary agreements or in small print in other agreements, and consumers and employees often does not know in advance that they have agreed to mandatory binding pre-dispute arbitration by purchasing a product or taking a job.
  • If the arbitration is mandatory and binding, the parties waive their rights to access the courts and to have a judge or jury decide the case.
  • If the arbitrator or the arbitration forum depends on the corporation for repeat business, there may be an inherent incentive to rule against the consumer or employee
  • There are very limited avenues for appeal, which means that an erroneous decision cannot be easily overturned.
  • Although usually thought to be speedier, when there are multiple arbitrators on the panel, juggling their schedules for hearing dates in long cases can lead to delays.
  • In some legal systems, arbitration awards have fewer enforcement options than judgments; although in the United States arbitration awards are enforced in the same manner as court judgments and have the same effect.
  • Arbitrators are generally unable to enforce interlocutory measures against a party, making it easier for a party to take steps to avoid enforcement of member or a small group of members in arbitration due to increasing legal fees, without explaining to the members the adverse consequences of an unfavourable ruling.
  • Discovery may be more limited in arbitration or entirely non-existent.
  • The potential to generate billings by attorneys may be less than pursuing the dispute through trial.
  • Unlike court judgments, arbitration awards themselves are not directly enforceable. A party seeking to enforce an arbitration award must resort to judicial remedies, called an action to "confirm" an award