ALTERNATIVE DISPUTES

RESOLUTION

ADR
• Introduction:

ADR has many advantages and disadvantages. The most prevalent advantage is that it can often times be the
quickest way to resolve a dispute. If the case goes to arbitration, the decision is binding and it has an appeal
process so the case can be resolved as quickly as the parties want. Mediation can also be a quick process.
Another advantage is that it often times can save the parties a lot of money. This is especially true for a
mediation. Usually the parties will split the cost of the mediator and there is a much smaller chance that it will
use up as much time as taking the case to trial. Often times it is significantly cheaper than the trial and if the
mediation does not resolve the dispute, the parties can still go to trial.
Alternative Dispute Resolution (ADR) is a common practice used to resolve disputes outside of the courtroom.
There are a variety of different options when it comes to ADR. The most common are negotiation, mediation, and
arbitration. However, this is not the only way to categorize ADR. ADR can be used for a small dispute between
you and your neighbor, or a large complicated dispute between corporations. In the current state of the court
system ADR is a very important tool to help resolve disputes. With the court system being overburdened more
than ever, parties have to wait longer and spend more money to get their case to trial. Even when the case gets
to trial, there is no guarantee that they will be satisfied with the results. The appeal process itself can take a few
more years to resolve and will cost even more money. With this in mind, courts are continually pushing parties to
resolve their disputes outside of the courtroom.
Arbitrati Conciliat Negotiat Mediatio
on ion ion n

ADR
 • Methods of ADR
1. Arbitration:
Arbitration is a method to resolve disputes outside the courts.
-Parties refer the dispute to one or more persons appointed as an arbitrator(s) who decides the case and
imposes a decision (‘arbitral award’) that is legally binding on both parties and enforceable in the courts.
-Usually, the arbitration clauses are mentioned in commercial agreements where the parties agree to resort to
an arbitration process in case of disputes that may arise in future regarding the contract terms and conditions.

2. Mediation:
• Mediation is where an impartial third party facilitates a conversational process between the disputing parties
to come to a satisfactory resolution.
• Mediation is a voluntary and non-binding process.
• Impartial third party known as a mediator tries to:
▪ objectively facilitate the resolution process
▪ talks to the parties first jointly then separately
▪ mediator does not propose solutions, parties involved find a solution
• The role of the mediator is to facilitate the conversation through negotiation- and communication techniques.
Mediation
process
3. conciliation:
• Conciliation is focused on building a positive relationship between the disputing parties, more
often used preventatively, to stop a conflict from developing into something substantial.
• Non-binding procedure and no prior agreement or clause required.
• Parties submit to the advice of a conciliator, who:
▪ through active facilitation
▪ talks to each of them separately
▪ proposes solutions
• The facilitator can make suggestions towards certain proposals, and give advice for certain
solutions.

4. Negotiation
• Discussions between the parties are initiated without the intervention of any third party, with the
object of arriving at a negotiated settlement of the dispute.
• A non-binding procedure
• Steps include preparation, exchange of information, bargaining and closing.
A D VA N TA G E S O F A D R :
• Select your own Arbitrator or Mediator. Selecting someone with expertise in the
substantive field involved in the dispute can help focus on the substantive issues involved
rather than on technical procedural rules. In normal litigation, the parties cannot select the
judge, and the judge and/or jury may often need expert witnesses to explain extremely
complex issues, wasting precious time.
• Expenses are reduced. Attorneys and expert witnesses are very expensive. Alternative
dispute resolution offers the benefit of getting the issue resolved quicker than would occur
at trial – and that means less fees incurred by all parties.
• ADR is speedy. Trials are lengthy, it could take years to have a case heard by a judge or
jury. Appeals can then last months or years after that. ADR can be scheduled by the parties
and the arbitrators as soon as they are all able to meet together.
• The results can be kept confidential. The parties can agree that information disclosed
during negotiations or arbitration hearings cannot be used later even if litigation ensues.
The final outcome can also be made private if the parties so stipulate and agree. On the
other hand, most trials and related proceedings are open to the public and the press.
• Party participation. ADR permits more participation by the litigants. ADR allows the parties
the opportunity to tell their side of the story and have more control over the outcome than
normal trials overseen by a judge.
• Fosters cooperation. ADR allows the parties to work together with the neutral arbitrator or
mediator to resolve the dispute and come to a mutually acceptab