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An Introduction to Alternate Dispute Resolution
Whenever a conflict arises the first method of resolution that comes to people’s minds is litigation which is the most common and the traditional method of conflict resolution. Litigation involves hiring attorneys, appearing before the court, arguing in the presence of a judge and then waiting for a decision. While this is the path that many choose when resolving a conflict, it is not the only choice available. A method of dispute resolution that is gaining popularity these days is that of ADR or Alternate Dispute Resolution. Alternate Dispute Resolution can be divided into three, commonly used, forms – Arbitration, Mediation and Negotiation, with Arbitration and Mediation being the more well-known and popular of the three.
Arbitration is the most formal of the ADR forms but is still less formal than a trial. Arbitration cannot be invoked unless the parties have a valid agreement to refer any dispute to an arbitrator chosen by them both[1]. Any party to an agreement with an arbitration clause can invoke it either himself or through his authorized agent. Arbitration is a method by which parties refer the dispute to one or more persons known as arbitrators so the arbitration clause must mention the name of the arbitrator/s, language of the process, place of work of the arbitrator/s, and place where the arbitration process will take place. The arbitrator must listen to the parties and make a decision, and this is a power similar to that of a judge in a case[2]. The arbitrator’s decision may be binding or non-binding, as the parties may decide, and if binding it can be enforced by a court of law. A binding arbitration means that the parties have waived their right to a trial, have agreed to accept the arbitrator’s decision and have chosen not to appeal the decision[3].
Mediation is also a formal procedure, more formal than negotiation but less formal than arbitration, and here the parties have the power to make decisions for themselves. The mediator is an impartial presence who only helps facilitate discussion between the parties. The parties have absolute control over the subject of discussion and any agreement reached. A typical session begins with the parties confiding their problems and perspectives in the mediator who will then identify the issues, facilitate honest and open communication, and offer creative solutions that often involve compromise[4]. Mediation is the best form of resolution when parties have a relationship with each other and tend to let emotions get in the way of an agreement as the mediator can help parties communicate in a non-threatening and effective manner.
Negotiation is the least formal and it involves parties communicating, or rather negotiating, with each other to reach a settlement or agreement that they will both abide by. Negotiations take place directly between the parties or through their representatives with no neutral third party facilitating the discussion like in mediation, or deciding the matter like in arbitration[5]. Usually, however, parties will have to meet with attorneys to have full knowledge about their rights and duties before starting a negotiation.
Therefore, parties to a dispute may prefer ADR to traditional methods of dispute resolution as the procedure is collaborative, facilitates open communication, provides certain freedoms to parties and allows for creative solutions to problems.
[1] Anubhav Pandey, All you need to know about Alternative Dispute Resolution (ADR), iPleaders, (May 9, 2017, 11:37 AM), https://blog.ipleaders.in/adr-alternative-dispute-resolution/.
[2] Editor, Types of Alternative Dispute Resolution, LegalMatch, (Apr. 9, 11:40 AM), https://www.legalmatch.com/law-library/article/types-of-alternative-dispute-resolution-adr.html.
[3] Editor, Forms of Alternative Dispute Resolution, MillerLaw, (Mar. 17, 2020, 3:44 PM), https://millerlawpc.com/alternative-dispute-resolution/.
[4] Editor, What is Alternative Dispute Resolution?, FindLaw, (Jun. 20, 2016, 4:56 PM), https://hirealawyer.findlaw.com/choosing-the-right-lawyer/alternative-dispute-resolution.html.
[5] Editor, Negotiation, Mediation and Arbitration, Calgary Legal Guidance, (Apr. 9, 2020, 11:58 AM), https://clg.ab.ca/programs-services/dial-a-law/negotiation-mediation-and-arbitration/.
- Alternate Dispute Resoltion
- Arbitration
- Mediation
