Alternative Dispute Resolution: A Legal Perspective

Alternative Dispute Resolution: A Legal Perspective

Saleem Gul (Institute of Management Sciences, Pakistan)
DOI: 10.4018/978-1-4666-9970-0.ch007
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Abstract

This chapter covers a lot of groundwork and provides and quick and through introduction to the concepts and underlying discussions on Alternative Dispute Resolution (ADR). The chapter provides a detailed discussion based on extant literature in an effort to differentiate between disputes and conflicts. Then some of the common confusions between terms commonly used in ADR are addressed. Following which various key government acts and reports that shape the state of ADR are discussed. Because of their length, therefore only those concerns within the documents that directly address ADR or are related to ADR are discussed. It remains a burden on the readers to access these documents themselves to fully appreciate their content.
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Background

Conflicts and disputes are nothing new, we as humankind have been experiencing conflicts and disputes from the onset. The oldest conflicts that we read or hear about are mostly biblical, some examples include the conflicts between God and the devil, followed by conflicts between brothers Caine and Abel, and between God and the Babylonians. Needless to state, the cause, nature, and durations of conflicts have varied over the times and so have their outcomes. Conflicts and disputes if managed or resolved lead to stronger and longer-lasting relationships (Jehn, 1994), to an expedited and judicious conclusion (Fenn, 2006), and to a greater readiness to work together in the future (Rahim, 2001). Conversely, if not managed properly, they can wreak havoc and may lead to actions causing impairment or death, and destruction as seen in the case of wars.

Key Terms in this Chapter

UNCITRAL: United Nations Commission International Trade Law Model Law on International Commercial Arbitration.

Jirga: Literally defined as a gathering of elders. It is a term used in the Pashto language of the North Western region of Pakistan and in the Pastho speaking areas of Afghanistan. A jirga is a conflict / dispute resolution process where the disputing parties after agreeing to the jirga process plead their case in front of elders from within their community. The outcome of the jirga is based on either party achieving a two-thirds majority or via a decision recommended by the elders. The higher courts of Pakistan have ruled that jirga’s for criminal cases are illegal because their decisions have often proved to be counter to the constitutional rights of the persons in dispute. However, administrative jirga’s are allowed within the Federally Administered Tribal Areas of Pakistan and within rural and urban areas to resolve small claims and disputes.

ADR: Alternative Dispute Resolution.

CFA: Conditional Fee Arrangement.

Anticipatory Breach: Also called anticipatory repudiation, is a term in the law of contracts that describes a declaration by the promising party to a contract, that he or she does not intend to live up to his or her obligation under the contract.

AJA: Access to Justice Act 1999.

Hearsay Evidence: The report of another person’s words by a witness, usually disallowed as evidence in a court of law.

HGCRA: Housing Grants, Construction and Regeneration Act.

Panchayat: Literally defined as a gathering of five. It is a term used within the rural Punjab provinces of Pakistan and India to define a dispute resolution process similar to the ‘jirga’.

Fiduciary Duty: A relationship between a trustee and beneficiary based on trust.

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