Alternate Dispute Resolution or "ADR", as it is more commonly known, means the wide variety of methods by which conflicts and disputes are resolved other than through litigation.
Some of the more common processes are discussed below.
The most popular form of ADR is mediation.
Mediation is a process of dispute resolution focused on effective communication and negotiation skills. The mediator acts as a facilitator assisting the parties in communicating and negotiating more effectively, thereby enhancing their ability to reach a settlement. It is not the mediator's role to adjudicate the issues in dispute and indeed the mediator has no authority to do so.
Mediation is not a process to force compromise, although compromise is an element of the process. Each party's limitations are respected and a party is only expected to make a shift in its approach to the problem if it becomes convinced that it is reasonable to do so.
Today mediation is the most rapidly growing form of ADR. It is being actively utilized in almost every conceivable type of dispute resolution and comes in various forms. The process has also been effectively adapted for multiple party dispute resolution with tremendous success. On average the success rates of mediation processes range from 80% to 85%. In an attempt to capitalize on the success rates, legislation is slowly being amended to include provisions for mediation of disputes.
The advantages of mediation are many. Some of the most compelling benefits mediation offers include:
- Effective Process: Mediation generally enjoys an 80%-85% success rate.
- Better Results: The resolution is created by the parties; it works for them.
- Speed: Mediation is focused in resolving the problem quickly.
- Cost: Mediation is not expensive.
Arbitration is a procedure for the resolution of disputes on a private basis through the appointment of an arbitrator, an independent, neutral third person who hears and considers the merits of the dispute and renders a final and binding decision called an award. The process is similar to the litigation process as it involves adjudication, however, the parties choose their arbitrator and the manner in which the arbitration will proceed. For example, if the dispute is fairly straightforward and does not involve any factual questions, the parties may agree to waive a formal hearing and provide the arbitrator with written submissions and documentation only, called a documents only arbitration, whereas in other cases the parties may wish a full hearing. Therefore, the parties create their own adjudicatory forum which is tailor made to the particular needs of the parties and the nature of the dispute.
The advantages of arbitration over court adjudication can include the following:
- Expertise of the Decision-Maker: The parties can choose an arbitrator who has expert knowledge of the law, business or trade in which the dispute has arisen.
- Low Cost: Arbitration is not expensive if the process is kept simple.
- Speed: Arbitration can be arranged within days, weeks or months and does not take as long as litigation.
The mini-trial is not really a trial at all but a combination of negotiation, mediation and adjudication processes. In this process, the parties select a mutually acceptable adjudicator, to preside over an abbreviated hearing and to render an opinion as to the likely outcome of the matter at trial. The adjudicator has no authority to make a binding decision other than on procedural matters relating to the mini-trial. With this process of dispute resolution counsel for each disputant make a summary presentation of their best case to the adjudicator, and in some instances high level business executives from each of the disputing corporations, who may meet after the summary presentations to attempt to negotiate a resolution of the dispute. The adjudicator will render an opinion as to the likely outcome of the matter at trial if the business executives are unable to negotiate a settlement, or as an impetus towards negotiating settlement.
Alternate dispute resolution involves methods of resolving disputes other than through litigation. The methods are in addition to litigation and are by no means intended to replace litigation. Even the strongest proponents of ADR agree that certain matters must be resolved through the courts. However, there are other methods for resolving dispute which offer many advantages over the adversarial route, which should be explored before litigation is commenced or proceeds too far.
See also ADR/Mediation: How It Works by Joanne Goss.