هروب من التقاضي إلى حلول بديلة

Avoidance of Litigation to Alternative Solutions

Some people may not tend to resort to courts and litigation in order to settle their disputes due to prolonged procedures and the long time span preceding the enforcement of the judgment. Therefore, there are alternative dispute settlement methods.

These methods include any means for out-of-court dispute settlement, which would achieve fair unbiased evaluation prior to litigation. Negotiation, mediation, conciliation, and arbitration are classified as alternative dispute settlement methods. However, negotiation is not used frequently in Kuwait as is the case of conciliation, while arbitration is currently the most commonly used method.

Negotiation is an attempt to influence another person through the exchange of ideas and valuable items. the process by which the participants, together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs. Mediation has been increasingly known over the last twenty years and its outset was related to the settlement of divorce disputes and procedures thereof.

Conciliation is a process whereby the parties seek to reach an amicable dispute settlement with the assistance of the conciliator, who acts as a neutral third party where he/she assists the parties to dispute by defining the disputed issues, developing available options available for them, and considering alternatives in an attempt to reach an agreement among them.

The arbitration system is a special process of litigation through the involvement of a third party or neutral parties to make the arbitral award binding based on certain objective standards and criteria. The arbitration is conducted through an arbitration tribunal, where both parties agree on one arbitrator who is not biased to any party or otherwise each party selects one arbitrator and the so selected arbitrators shall elect an empire who acts as the president of the arbitral tribunal. If both arbitrators fail to agree on the empire, the president shall be appointed by the arbitration center authorized to settle this type of dispute.

At present, litigation is not sought after by some people due to countless problems resulting from huge number of lawsuits heard before courts. This led the process to be very slow, where someone may wait for months and in some cases several years to have their lawsuit heard by the judge. In cases of challenge, the litigation process and its duration are unknown and unforeseeable.

By comparison, the alternative dispute resolution methods and their respective advantages can be summarized as follows:

First Negotiation: It is the most direct and least intervening method where there is direct contact between the parties to a dispute and their representatives in order to reach a settlement. Further, the representative of each party may have a minor intervention, which would result in many cases guaranteeing compliance by the parties to dispute and hence reaching a solution.

Second Mediation: it is based on an independent neutral third party who helps the dispute parties reach an agreement or solution. This method is very useful if the parties to the dispute have a disagreement. Mediation is more used for certain personal status lawsuits and some business lawsuits. It starts with a debate with both parties followed by meetings and eventually, there would be a voluntary contractual agreement between both parties.

Third: Conciliation: This method is quite similar to mediation but the main difference lies in the fact that it adopts a more intervening technique, as the conciliator in this kind of settlement seeks, by all means, to enhance solutions, propose possible options and clarify potential privileges in this settlement.

Fourth Arbitration: This method is more judicial than other techniques and is the most similar to litigation but there is a great deal of freedom for the dispute parties where they can determine how to form their arbitral tribunal. This provides them with more flexibility than litigation and court settlement. This is the most popular technique in settling business disputes worldwide due to the requirements of expertise in specific fields of law and arbitrators should be experienced in certain fields.

The importance of alternative dispute resolution methods lies in eliminating accumulated lawsuits in courts. This means that there will be more time and room for determining criminal issues involving public interest as compared to business-related issues, which, given their nature, involve private interests. Therefore, courts can consider significant legal issues and continue to develop the judiciary.

Published in: Al-Qabas Newspaper
Date of Publish: 31 August 2014
Article By: Lawyer Haifaa Al-Huwaidi

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