“Court hearings are not always the best way to resolve a dispute, and their disadvantages mean that, for some types of problem, alternative mechanisms may be more suitable .” The statement is agreeable and accurate. It is neither convenient nor possible to solve every dispute in a court of law and alternative mechanisms are always a good option. The court is an option when the dispute cannot be resolved outside the court and it is inevitable to take the matter to the court due to absence of any other remedy or complexity of the matter to be resolved.
Agreements between the holiday maker and the tour operator are made in order to benefit both sides of parties in equal proportion, in consideration of their respective expectations. However, if the tour operator fails to meet the respective expectation of the agreement, the holiday maker has the right to claim damages in the case of fraudulent misrepresentation as shown by the package travel regulations 1992. However solving disputes in court can be time consuming and expensive as huge amounts of money will be spent in the courtroom.
There are many numerous reasons as a result of why people do not prefer to take the matter to the court. The judicial procedures are lengthy and time taking and people prefer not to take small issues to the court because of these lengthy procedures. The time required to pursue the matter in the court is not available to many people, so they choose not to take the matter to the court. Court procedures are usually complex and not easily understandable for common people.
Court hearings are not convenient for people for multiple reasons and people usually avoid court hearings for these reasons. These reasons may range from time consuming to financially inconvenient, hectic to complex and ineffective for some specific disputes. So people usually prefer to go for the available alternative solutions. ADRs in this regard can be the best available option for the parties in a dispute.
The second reason is the money that is required to pursue a matter in a court of law. The judicial system is not very cost efficient when it comes to small disputes. People prefer to save time and money instead of going for the court option for the dispute resolution. The people in most of the cases are not aware that what legal remedies are available to them and what procedures they can adopt for resolution of their issue in the legal system. These issues require an alternate system of dispute resolution, which is easy, simple, and time efficient for parties .
The court hearings systems become even more hectic, problematic and complex when it is about the tourism industry. Holidaymakers and tour operators usually have verbal services contracts or may involve online transactions that may occur between two separate jurisdictions. In this situation, court hearings are not just complex, but also sometimes impossible for the parties. Court hearings in complex disputes, matters where large sums of money are involved and matters that require legal force to be implemented are the matter that are inevitable to be heard in a court . However, in small disputes and matters, there are many disadvantages of court hearings. Some of the important disadvantages are:
The court hearings occur in a very complex aggressive environment that create high tension between the parties that divides them.
The court hearings leave very less room for parties to stay in any relation after the dispute is resolved.
Some disputes are not primarily based on legal issues, rather there is a question of technicality is involved, such disputes require alternative dispute resolution.
The court procedures are not very flexible rather fixed and this may put parties in a complex situation.
Court hearings may end up in a forced decision where both the parties may not feel satisfied of the outcome of the dispute by the court.
The court hearings are public, and parties’ privacy may be disturbed due to court hearings.
Court hearings require multiple visits to the courts on different occasions during the court proceedings.
Alternative Dispute Resolution (ADR) systems are the options that are available to the people parallel to the court hearing. ADRs are the systems that people can use to solve small disputes, contract breaches, and routine transactional disputes where small amounts of money are involved. These alternatives are simple, time efficient and cost effective. There are three basic options available as alternative disputes resolution; Arbitration, Mediation and Conciliation .
Arbitration is an alternative dispute resolution system where both the parties to a dispute willfully agree to take the dispute to a third party for resolution, the third party resolve the dispute as an arbitrator. The arbitrator can be an expert in the field, a lawyer or a retired judge. The arbitrator decides the dispute as per the law and facts of the dispute and the decision by the arbitrator is binding on the parties .
Mediation is an alternative system of dispute resolution is a system where a mediator is appointed with consent of both the parties and that mediator work as a helper to both the parties to reach a solution to the dispute. The mediator provides best possible options to the parties to the dispute and tries to agree the parties on a solution. When the parties reach to a solution, it is written down and a legally binding contract is formed.
Conciliation is not much different from mediation but the conciliation has more intervention than the mediator does. Conciliation may be considered a form of mediation rather than a separate alternative dispute resolution system. The system is now being replaced with the mediation.
ADRs in Tourism Industry:
Small disputes arise in tourism industry, usually between the holidaymakers and the tour operators. The disputes are usually small in nature or involve small amount of money. Most of the time these disputes happen in a place where the holidaymakers and the tour operators are based in two different jurisdictions and it is highly inconvenient for both the parties to go to a court for the resolution of the dispute . It is observed that in many cases, the parties belong to different countries and transections made between the parties involve international jurisdictions. In these situations, court hearings are not a good option for the parties, which involve a lot of time and resources .
Alternative dispute resolution systems are the most efficient and reliable option for the holidaymakers and the tour operators as these options are very efficient, time convenient and less hectic.
Advantages of ADRs:
There are many advantages of ADRs, that can be availed by the holidaymakers and tour operators in case of arise of a dispute between the both. Some of the advantages are:
ADRs are time convenient for the parties as the dispute may be resolved in a single sitting and does not require multiple meetings.
ADRs do not require fixed procedures that provide flexible options to the parties in the dispute.
The parties do not get involved in rivalry and continue to have relation in future that can help sustain the impact of the dispute.
This system of alternative dispute resolution is cost effective for the parties involved, as it required no court fee, lawyers’ fee, and other miscellaneous charges that occur due to court hearings.
The ADR systems can be availed by the parties in situation even when there is no law to govern between the parties and the parties with consent can avail benefit of ADRs.
Legislation on ADRs:
The most important legislation on the ADR is the European Union’s legislation on ADRs. The legislation covers the two important aspects, Alternative dispute resolution and online dispute resolution. The legislation was adopted on May 21, 2013 . The legislation not only covers the dispute that can arise on normal transections and contracts, it also covers the online contracts and transections. This legislation can be taken as a model legislation and altered to suit the needs of the tourism industry and to provide the strong base for the dispute resolution between the holidaymakers and the tour operators .
The most important factors that needs to be covered in the legislation to best suit the needs of tourism industry and the holidaymakers are:
Construction of a dispute resolution mechanism that can suit the instant needs of the holidaymakers, as they do not stay at the holiday spot for long
Secure the interest of the parties in case of online transactions and introduce the mechanism that solve such disputes efficiently
Availability of the legislative clauses in the legislation that cover all kind of contract and services related to hospitality industry and holidaymakers
Strengthening of the legislation to be compatible with the legislations available in different jurisdictions
Introduce a mechanism for ADRs in separate jurisdictions
By adding these features in the legislation regarding the ADRs for the holidaymakers and the tour operators in specific and for the tourism industry in general, the dispute resolution mechanism can be enhanced to best suit the needs of time .
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