Alternative Dispute Resolution (ADR)?
The term Alternative Dispute Resolution, or ADR, refers to the range of methods used by parties who are in dispute or conflict, to resolve their differences without going to court or litigation.
Illustrated below is a spectrum of dispute resolution processes which, moving along from left to right, increasingly involve third parties. For example, at the far left, negotiations are between the parties with no third party involvement, while litigation at the far right consists of placing the outcome of the dispute or conflict in the hands of a public court.
Dispute Resolution Spectrum
Negotiations | Facilitation | Fact Finding | Mediation | Restorative Justice Forums | Early Neutral Evaluation | Mediation / Arbitration | Arbitration | Litigation
The following brief descriptions of each process are intended to provide a broad overview only. Please consult with your a dispute resolution professional, your lawyer, or other knowledgeable individuals for a thorough understanding of these processes. There are also a number of excellent texts on the subject of dispute resolution.
Negotiations
In this process the parties, without the assistance of a third party, jointly attempt to resolve their differences through discussions and possibly exchanging offers to settle.
Parties in dispute or conflict may engage a facilitator to assist them in a variety of ways such as keeping the parties focused on their agenda, helping the parties define the issues and generally to assist the parties in their problem solving. Depending on the terms of reference for the facilitator, facilitation can involve elements of mediation …please see Mediation below.
Where parties in dispute or conflict cannot agree on certain facts this will likely prevent resolution and therefore a Fact Finder may be engaged only for the purpose of determining a particular fact(s). For example in a dispute over the appropriate level of service the fact finder would conduct an independent review and report to the parties what is the industry norm in such situations.
This is a problem solving process whereby the Mediator assists the parties in dispute or conflict, to explore their issues and the interests and concerns behind these issues, to facilitate an examination of the full range of possible solutions and assist the parties in reaching their own agreement. The mediator does not impose any decisions. Please see also 'What is Mediation?'
In situations where an offender takes responsibility for a wrong doing a restorative justice forum can be an appropriate process whereby the victim, the offender, and others who have been impacted, meet with the assistance of a facilitator to work out a plan to repair the wrong that has been done.
In this process the parties in dispute or conflict engage an impartial third party to assess the merits of each parties' position. This is an attempt by the parties to test the likelihood of success of their case with an objective third party. The extent of the Evaluators' role and use of the evaluation will depend on the terms of reference given by the parties. The Evaluator does not decide the case.
This combination process starts with the parties participating in Mediation. If the parties reach agreement in Mediation the process is completed. If the parties do not resolve their differences the dispute or conflict proceeds to arbitration. The Arbitrator who will decide the case is the same individual who assisted the parties in Mediation. As noted the Arbitrator will render a binding decision on the parties. Please see 'Arbitration' below.
The parties choosing Arbitration are in effect establishing a private court where they select their own impartial third person whose decision will be binding on them. This process has some of the formality of a courtroom and follows legal procedures.
This involves the public courtroom process where your dispute or conflict is taken to public court for resolution. This is a formal legal process and your dispute will be decided by a third party.
What Dispute Resolution Process is Best?
Since each dispute or conflict is unique as are the parties involved, no one particular dispute resolution process is appropriate in all cases. There are a number of criteria you may use to determine which is the preferable dispute resolution process for your situation. Some of these criteria are discussed below. We also recommend that you consult with a dispute resolution professional, your lawyer and other knowledgeable individuals to determine which process is best for you.
Here are some of the factors you may wish to consider .
Control
Your control over the outcome of a dispute or conflict will vary depending on the dispute resolution process you choose. For example in arbitration or litigation the outcome will be determined by a third party. Using Facilitation or Mediation the parties themselves decide the appropriate resolution to their conflict or dispute.
The adversarial nature of some processes such as litigation can be damaging to relationships. Other processes such as Mediation can preserve relationships. This can be important if ongoing relationships are a concern.
A conclusion to a dispute or conflict can be certain with some processes but not so with others. In Arbitration or Litigation the process concludes with a decision by a third party whereas in Mediation the parties may not reach an agreement in which case the dispute or conflict continues.
In some situations a timely resolution is important and this will cause the parties to select a process that will provide an earlier resolution than one which delays resolution.
In summary an assessment of the dispute resolution processes will involve the above factors as well as other factors. We recommend that you consult with professionals for help with your assessment.The expense associated with a dispute can vary depending on the dispute resolution process which is chosen.