17. ALTERNATIVE DISPUTE RESOLUTION
LEARNING OUTCOMES
After studying this topic and the relevant readings, you should be able to:
• Describe in outline the main types of ADR processes
• Describe the approach of the courts to mediation and cost sanctions
• Explain the benefits and disadvantages of private dispute resolution
processes
• Discuss the extent to which mediation should be compulsory.
MAIN TYPES OF ADR PROCESSES
MODULE GUIDE
INTRODUCTION
ADR is an umbrella term which generally is applied to a range of dispute resolution
methods other than court proceedings.
These include:
-Negotiation
-Mediation
-Conciliation
-Arbitration
-Adjudication
-Early neutral evaluation
-Ombudsmen schemes
Critical feature: They are all conducted in private. Both the process and outcome are
confidential to the parties.
ARBITRATION
o A private, confidential determination of a dispute by an independent third
party.
o Makes a decision according to law.
o The decision is called the “award” and is legally binding and can be
enforced through courts.
o It may involve an individual arbitrator or a tribunal (which can consist of
any number of arbitrators) although some legal systems may insist on an
odd number to avoid ties.
o Includes shipping, insurance, and international commercial disputes.
EARLY NEUTRAL EVALUATION
, o A private process which a neutral legal professional hears a summary of
each parties case and gives a non binding assessment of the merits.
EXPERT DETERMINATION
o A private process in which an expert neutral third party is appointed to
decide the dispute.
o The expert's decision is binding on the parties.
o An adjudicative process.
MEDIATION
o Most popular ADR process.
o Involves a neutral third party assisting to reach a settlement.
o This is a facilitated settlement.
o It is voluntary and nonbinding, but any binding agreement reached can be
enforced in contract.
o In facilitative mediation the mediator will not give a view of the strengths
and weaknesses of parties' cases, and they can choose to have an
evaluative mediation.
o An evaluative mediation is where the mediator gives an assessment of the
legal strength of each party's case.
o It is capable of producing win win scenarios rather than win lose.
CONCILIATION
o A facilitated settlement process that is often confused with mediation.
o The third neutral party however takes a more active role, even though
similar to mediation.
o They deliberately suggest ways that the parties can reach a settlement.
o Common among employment disputes.
MED-ARB
o A hybrid process between mediation and arbitration. They attempt to
reach a mediated settlement.
o But if the mediation does not lead to a settlement after an agreed period
of time, the mediator will arbitrate and give a decision.
OMBUDSMEN
o Independent dispute and complaint handlers who investigate and rule on
complaints from members of the public about poor administration or
service by government departments, and about public and private service
delivery.
LEARNING OUTCOMES
After studying this topic and the relevant readings, you should be able to:
• Describe in outline the main types of ADR processes
• Describe the approach of the courts to mediation and cost sanctions
• Explain the benefits and disadvantages of private dispute resolution
processes
• Discuss the extent to which mediation should be compulsory.
MAIN TYPES OF ADR PROCESSES
MODULE GUIDE
INTRODUCTION
ADR is an umbrella term which generally is applied to a range of dispute resolution
methods other than court proceedings.
These include:
-Negotiation
-Mediation
-Conciliation
-Arbitration
-Adjudication
-Early neutral evaluation
-Ombudsmen schemes
Critical feature: They are all conducted in private. Both the process and outcome are
confidential to the parties.
ARBITRATION
o A private, confidential determination of a dispute by an independent third
party.
o Makes a decision according to law.
o The decision is called the “award” and is legally binding and can be
enforced through courts.
o It may involve an individual arbitrator or a tribunal (which can consist of
any number of arbitrators) although some legal systems may insist on an
odd number to avoid ties.
o Includes shipping, insurance, and international commercial disputes.
EARLY NEUTRAL EVALUATION
, o A private process which a neutral legal professional hears a summary of
each parties case and gives a non binding assessment of the merits.
EXPERT DETERMINATION
o A private process in which an expert neutral third party is appointed to
decide the dispute.
o The expert's decision is binding on the parties.
o An adjudicative process.
MEDIATION
o Most popular ADR process.
o Involves a neutral third party assisting to reach a settlement.
o This is a facilitated settlement.
o It is voluntary and nonbinding, but any binding agreement reached can be
enforced in contract.
o In facilitative mediation the mediator will not give a view of the strengths
and weaknesses of parties' cases, and they can choose to have an
evaluative mediation.
o An evaluative mediation is where the mediator gives an assessment of the
legal strength of each party's case.
o It is capable of producing win win scenarios rather than win lose.
CONCILIATION
o A facilitated settlement process that is often confused with mediation.
o The third neutral party however takes a more active role, even though
similar to mediation.
o They deliberately suggest ways that the parties can reach a settlement.
o Common among employment disputes.
MED-ARB
o A hybrid process between mediation and arbitration. They attempt to
reach a mediated settlement.
o But if the mediation does not lead to a settlement after an agreed period
of time, the mediator will arbitrate and give a decision.
OMBUDSMEN
o Independent dispute and complaint handlers who investigate and rule on
complaints from members of the public about poor administration or
service by government departments, and about public and private service
delivery.
