Contract disputes and alternative dispute resolution: some observations
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The function of law may be described as twofold: firstly, to regulate the affairs of persons (persons includes corporations, societies, individuals and government); secondly, to establish within the community a level of moral conduct. The success may to a great extent be based on the acceptance by the community of these regulations and level of conduct in order to resolve disputes. To some degree, there has been a shift in community expectations with respect to the method by which conflicts are resolved. There appears to be an increasing desire by parties to have disputes resolved as opposed to having their day in court. This method of resolution is not new. One form of dispute resolution, namely arbitration, has been around for centuries. In fact, recourse to the arbitration process has been common practice in England since the middle ages and was codified in the English Arbitration Act.(1) Arbitration has been defined in Halsbury as: … the reference of a dispute or difference between not less than two parties for determination, after hearing both sides in a judicial manner, by a person or persons other than a court of competetent jurisdiction.(2) In fact, the ADR process forms part of the procedure of the Jewish religious court called the “Beth Din”. At present the commercial community uses the acronym ADR to refer to “alternative dispute resolution”, meaning an alternative to the public court system. I prefer “appropriate dispute resolution”, thereby leaving within the arsenal of dispute resolution systems the use of courts for those cases that may require a principle to be established, public vindication or formal acknowledgment of the infringement of a legal right. I am reminded of what Willard Z. Estey said about disputes:(3) Disputes, unlike wine, do not improve by aging. Chief Justice Warren E. Burger said:(4) |