What is Alternative Dispute Resolution (ADR), Modes and Processes of Alternative Dispute Resolution (ADR).
Dispute resolution is the process of resolving a dispute between parties. Dispute resolution is also often referred to as “conflict resolution.” There are a number of processes that can be used to resolve conflicts, claims, and disputes.
Therefore, ADR is the procedure for settling disputes without litigation, such as arbitration, mediation, or negotiation. It is also called external dispute resolution (EDR).
ADR procedures are usually less costly and more expeditious. They are increasingly being utilized in disputes that would otherwise result in litigation, including high-profile labour disputes, divorce actions, and personal injury claims.
One of the primary reasons parties may prefer ADR proceedings is that, unlike adversarial litigation, ADR procedures are often collaborative and allow the parties to understand each other’s positions. ADR also allows the parties to come up with more creative solutions that a court may not be legally allowed to impose.
So the philosophy behind ADR is that it offers the parties an opportunity to avoid risks and reduces the likelihood of an unfavorable outcome. It gives the parties in the dispute the opportunity to consider the risks involved in litigation.
Dispute Resolution Processes
Generally, however, most dispute resolution processes are classified as facilitative, advisory or determinative or as ‘mixed’ or ‘blended’, and this article focuses on the more facilitative forms:
(a) Facilitative processes involve a third party, usually with no advisory or determinative role, providing assistance in managing the process of dispute resolution. These processes include mediation and facilitation.
(b) Advisory processes involve a third party who investigates the dispute and provides advice on the facts and possible outcomes. These procedures include investigation, case appraisal and dispute counselling.
(c) Determinative processes involve a third party investigating the dispute, which may include a formal hearing, and the making of a determination that is potentially enforceable. These processes include adjudication and arbitration and may be binding or non-binding.
While there are many reasons why facilitative processes have become more popular in recent years, one critical factor relates to the location of ADR services. Where ADR takes place within the courts or in a court-connected framework, such processes may be more likely to be advisory and be the subject of legal negotiation patterns. Arguably, one reason why facilitative mediation has grown so quickly in Australia is because it is often located outside the court system. While in Australia there has been substantial growth in facilitative ADR both within and outside the court system, in many disputes ADR must be used before court proceedings can be commenced. For example n some cases, court proceedings cannot be filed until a certificate has been lodged indicating that the parties have attended a mediation or in other situations parties must have made a ‘genuine effort’ or made ‘reasonable attempts’ to resolve the dispute before commencing proceedings. Within Australia, the most striking example of an extensive mandatory prelitigation ADR system exists in the family relationships area, and most disputants can expect to attend some form of mandatory ADR before being able to commence proceedings in a court.
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Modes of Alternative Dispute Resolution (ADR)
Arbitration – This is a method involving one or more neutral third parties who are usually agreed upon by the disputing parties and their decision is final. The decision arrived at by arbitrator(s) is called an award and same is enforceable like a court judgment. The agreement to arbitrate must be in writing, signed, and the agreement is irrevocable except by agreement of the parties or by leave of court (Aduaka & Onnome, 2018). A process similar to an informal trial where an impartial third party hears each side of a dispute and issues a decision; the parties may agree to have the decision be binding or non-binding.
Mediation – This is essentially a non-binding dispute resolution mechanism involving a neutral and impartial third party who tries to help the disputing parties reach a mutually agreeable solution. The third party here is impartial, does not take decisions for the parties rather he helps them in identifying the issues and interests that need to be solved (Aduaka & Onnome, 2018). A collaborative process where a mediator works with the parties to come to a mutually agreeable solution. mediation a form of negotiation with a third-party catalyst who helps the conflicting parties negotiate when they cannot do so by themselves. Mediation is usually non-binding (Khan & Karim, 2017).
Conciliation-The process of conciliation is basically that of mediation. The only difference is that the neutral third party is usually an expert in the field or area of dispute in which he has being called upon to conciliate (Aduaka & Onnome , 2018). This is an ADR process where an independent third party, the conciliator, helps people in a dispute to identify the disputed issues, develop options, consider alternatives and try to reach an agreement. A conciliator may have professional expertise in the subject matter in dispute and will generally provide advice about the issues and options for resolution. However, a conciliator will not make a judgment or decision about the dispute. Conciliation may be voluntary, court ordered or required as part of a contract. It is often part of a court or government agency process.
Negotiation- Negotiation is a process whereby parties discuss and agree to terms or reach certain agreement without the aid or intervention of a third party. Negotiation basically involves some form of „give and take‟ from either parties or some form of compromise by the disputing parties. It is important to note that the law does not prohibit parties to a dispute from engaging in negotiation for the purpose of settling their dispute (Aduaka & Onnome , 2018). This form of ADR is often overlooked because of how obvious it is. In negotiation, there is no impartial third party to assist the parties in their negotiation, so the parties work together to come to a compromise.
Collaborative Law- This is a form of ADR that has grown in popularity, especially in respect of family disputes. In this process, all participants may decide to use a ‘collaborative’ process model whereby lawyers and all experts are trained in interest-based negotiation and are focused on the negotiation process with two-hour meetings and guidelines for gathering and exchanging information (collaborative participation agreements normally require the withdrawal of lawyers and others if the negotiation does not result in an agreed outcome, which means that they cannot be involved in any subsequent litigation). This is common in North America.
Ojeaburu Friday Msc, ACA, PhD (In view)
