This article is written by Pratham Chourasia.
Communication is a crucial aspect in our everyday lives. But it assumes a greater role in resolving disputes. Communication can either make our argument strong or make it vulnerable to outside influence. Alternative Dispute Resolution is one such method of resolving disputes which depends solely on communication. If your communication skills are good, then you automatically gain an edge over the other counsel. Communication is as important in ADR as food is for our body. Just like we won’t be able to survive without food for long, similarly without communication, disputes cannot be resolved or even heard till the judgment day. Communication becomes more important in ADR because in courts, evidences plays a part in deciding the outcome of the case but while resolving disputes through ADR, communication is the whole and soul of the mediation/arbitration and other processes.
How do you resolve your disputes that arise on a daily basis? Do you go to court ? Or you prefer to settle is outside by various means? As per the trend, most of you will prefer to settle disputes outside the court. But WHY? There are a number of reasons for it, like – you don’t want to get involved in a court case or simply you prefer to stay away from all the hassle. This is a general consensus and most people find in more convenient. We all find out various ways (arbitration or consensus ad idem) to resolve conflicts just to avoid legal proceedings.
But are you actually aware of what this way of dealing with disputes outside the court called? It is called ALTERNATIVE DISPUTE RESOLUTION (ADR).
In layman’s language – ADR refers to an informal way of dealing with disputes outside the domain of court by using various techniques. It is a more preferable and an easier way to deal with disputes.
By definition – Alternative dispute resolution (ADR) refers to a variety of processes that help parties resolve disputes without a trial. Typical ADR processes include mediation, arbitration, neutral evaluation, and collaborative law.
How can we deal with disputes by means of ADR? One of the most important elements of this is Communication. It refers to way in which we express ourselves, our thoughts and emotions to the other party by way of speaking, writing, non-verbal techniques etc.
But why is communication necessary? It is necessary because unless and until we do not communicate to the other party, there will be higher chances of someone being sued.
What are the different ways of communication?
- Visual communication
Are there ways other than communication to resolve conflicts through ADR? Yes, they are as follows:
- Neutral Evaluation
- Case conferencing
Alternative Dispute Resolution plays a pivotal role in any country’s legal system by unburdening it to some extent, but this trend is changing. All thanks to the film & media industry to present it in a glamorous way which attracts and de – motivates people to resolve conflicts through ADR.
“Communication is not only the essence of being human, but also a vital property of life.” – This is a quote by John A. Piece, depicting how important communication is for a human being. Communication is not only the crux of human lives, but also plays a huge role in determining our personal and social life. It’s like riding a bicycle; the more we work on our communication skills the more we progress in life.
Communication is a tool by which we, as social creatures can express ourselves and establish relations with others, either formal or informal.
An effective communication is must for any sort of work, be it a contract or resolving an issue. It eases off, prevents and eliminates the barriers that hamper effective transfer of ideas, thoughts, emotions etc and acts as a mediator in resolving conflicts that occur at various steps.
Types of communication
- Verbal communication: refers to the use of spoken language to convey a message to the listener. The speaker produces sounds that is then transmitted to the other person. The message is encoded by the sender, is transmitted via air using sound, then received by the listener who decodes the meaning to understand the message.
- Non–verbal communication: This is also an integral part of communication. Sound may or may not be present but the way it is used indicates or communicates a message (A person shouting – depicts he is angry or annoyed, etc). The use of Facial expressions, actions, body language, etc, are examples of non-verbal communication.
- Written communication: With the advancement in print media and technology, writing has become a popular mode of communication. In the present world, people use written communication more than other form of communication because of its advantages. It’s easier to spread the message in written form rather than verbal or non-verbal methods (Ex – Email, invitations, cash memo etc).
- Listening – “One of the best ways to persuade others is with our ears – by listening to them” This is a famous quote by Dean Rusk (Secretary of state under Presidents John F. Kennedy & Lyndon Baines Johnson) provides us with one of the most important aspect of communication i.e. Listening . Many people will ignore this but in actual practice, effective listening is as important as effective speaking or non-verbal methods. It basically refers to decoding the information received by various means in order to interpret it as accurately as possible. Even a slightest misinterpretation may change the actual meaning which may cause various other difficulties.
- Visual communication: This is often the most ignored form of communication but it’s as important as any other form. Visual communication refers to a form of communication wherein there are no words or sound or anything like this. Only the picture or the art work is the one communicating. We have to use our prior knowledge in order to understand what the creator is trying to tell us.
Alternative Dispute Resolution
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser — in fees, and expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough.” – Quoted by Abraham Lincoln, explains the concept of Alternative Dispute Resolution. This shows the relative importance of ADR in everyday life and why we should opt for it rather than following the regular process of litigation.
ADR is an acronym for Alternative Dispute Resolution, which refers to a variety of dispute resolution processes that act as an alternative to judicial trial. There are various forms of ADR but the most popular forms of ADR are Mediation & Arbitration.
Types of Alternative Dispute Resolution
Mediation: refers to facilitation of any agreement by a third party who should be neutral while decision making. It is cost-efficient and fastest method in ADR
“An ounce of mediation is worth a pound of arbitration and a ton of litigation!” — quoted by Joseph Grynbaum, tells us the value & importance of mediation in ADR.
It is a process which is solely based on communication between the parties for resolving the conflict between the parties which results in a win-win situation for both of them with the end of mediation process. The mediator aims to establish effective communication between both the parties and try to reach at a conclusion so as to resolve the conflicts.
- Arbitration: refers to a consensual decision by the parties to resolve their dispute by submitting it to one or more arbitrators. The decision so given is binding on the parties this is a private way of resolving disputes instead of going to court.
- Neutral Evaluation: is mainly related to arbitration, in which the case is submitted to a third party who decides on the matter from a neutral perspective. But in this the decision is non-binding unlike arbitration.
- Case conferencing: refers to a process in which the judge or its representative meets with the parties and try to resolve the dispute outside court before trial begins.
Advantages of ADR
- Reduces burden on Courts: As cases are resolved outside the court without judicial trials, thus reducing the number of cases appearing before the court.
- Cost & time efficient: The process involving mediation, arbitration etc, are resolved by mutual understanding and rarely involves lawyers. This reduces the cost of lawyer and other court fee. Also the time required to resolve any dispute is lesser.
- Beneficial for all the parties: As this process involves mutual agreement and deliberate discussion by the parties, the end result will suit both of them and is a win-win kind of situation.
- Proceedings are private: The process of resolution of dispute is private and stays between the parties.
Why is communication important in the process of Alternative Dispute Resolution?
“The problem with communication is the illusion that is has occurred.” — quoted by George Bernard Shaw clearly depicts the importance of effective communication. We often assume that whatever we wanted to say to others has been properly conveyed. But sometimes this assumption is misleading & in reality nothing much has been conveyed. This encourages the need for effective communication.
So far we have discussed about the definition and components of Communication & ADR. But here we will talk about why communication is necessary for resolving disputes through ADR. Communication is the key factor in ADR, without it, disputes & conflicts cannot be solved. Every method of ADR requires one or other form of communication, be it mediation/arbitration or any other form.
Slightest misunderstanding can change the understanding & outcome of the case, that is why clear and efficient communication is must. Here are the steps of communication that are required in ADR:
- Active Listening with empathy – the key aspect of communication is listening to others with empathy. Empathy refers to putting your foot in someone else’s shoe. This means trying to understand the situation from other’s perspective as well. This will lead to a better judgment of the situation , hence helping us in deciding the matter more clearly.
- Body language – This refers to non-verbal signs & gestures that we often use to convey our thoughts, emotions etc. This has a huge impact on others in assessing the situation. A person with a confident body language is more likely to create an impact & persuade the others to decide in their favor.
- Commonly used techniques in ADR:
- Summarizing: refers to giving a brief statement highlighting the main points & the subject matter. It is extremely important for effective communication which is often accompanied by paraphrasing about the subject matter.
- Reflecting – This confirms that we have heard the other party well and deciding on the matter keeping in mind the views of other party. This depicts that whatever decision is being taken is in accordance with the interests of the concerned parties.
- Acknowledgement – refers to acceptance of truth or existence of something. This is important as to win the trust of the concerned parties while making decision. Also acknowledgement is a sign of effective communication.
These techniques of communication are very essential in ADR. A slightest misunderstanding and everything can go wrong. Communication is a medium of exchange which uses both verbal & non-verbal sensory channel. We encode the information, transmit it and wait for others to decode it. There are 3 styles of communication:
- Passive style – refers to a mode of communication wherein an individual tries to avoid excessive feeling, opinions, and thoughts etc keeping in mind the needs they have. Those using passive communication often has low self esteem & behavior depicts lack of action, refusal of anger, aggressive behavior. All this behavioral elements transform a person into being an introvert. This passivity of communication leads them to isolate themselves physically and emotionally.
- Aggressive style – refers to a way of communication in which an individual strongly expresses his opinions & thoughts to others speaking on behalf of their needs in a way that violates the right of persons who come in contact with them. These persons are aggressive (verbally/physically) in nature, are always on alert and do not focus about the impact they have on others. These people have low self esteem because they have experienced some kind of emotional or physical abuse, feeling helplessness and unhealed emotional wound. They always try to dominate the others by way of aggression causing stress to those in direct contact.
- Assertive style – is a mixture of passive and aggressive style in which individuals express their opinion and thoughts clearly and in correct terms for their rights and needs keeping in mind the needs of other parties as well. Person using assertive style has high self esteem and is confident. They are extroverts and can talk for themselves confidently and accept other’s point of view. In this, they establish a relation with good terms and deal with the situation effectively without resorting to aggression or court trial.
Mediation and ADR have been present in our society. In olden days, there used to be wise person who acts as a mediator, arbitrator in case of disputes. This wise person is considered as a neutral mind that will decide on the matter from an unbiased point of view and decide on the matter that suits best for both the parties. All this is possible because of effective communication that seems as the best solution to the problem and to decide in such a manner that it will be a win-win situation for the parties.
Clear and effective communication is not something which we are born with. We have to work hard to achieve success in the field of communication which comes with patience, practice and hard work. A person who works on his communication skills gets an edge from its counterparts. Good, clear & effective communication is the need of the hour.
From legal perspective, we communicate primarily for two reasons: – to flee or to fight. The style of communication can vary but the ultimate aim always circles around these two. In Alternative Dispute Resolution, communication is the most important medium of exchange. Direct, open, simple & honest method of communication helps in clear understanding of the situation and prevents misinterpretation of the message. Also clear, effective & efficient communication helps the party to win trust of others and to convey their stand on a particular matter. This establishes a long term relation which is beneficial in many ways.
Also communication process should be open for criticisms & scope of improvement with better understanding because criticisms and conflicts are constructive in nature and helps in overall development.
The main motive of ADR is to settle dispute outside court by employing various means/methods. We can conclude that effective communication is a vital, necessary & the most important tool in Alternative Dispute Resolution (ADR).
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