“Define “Alternative Dispute Resolution (ADR)”and appreciate the difference between conflict and Dispute”.
Alternative dispute resolution (ADR) (also known as External Dispute Resolution in some countries, such as Australia) includes dispute resolution processes and techniques that fall outside of the government judicial process. Despite historic resistance to ADR by both parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties’ cases to be tried.
Conflict resolution is the process of attempting to resolve a dispute. War, or on a smaller scale, infighting was the earliest and most common method of conflict resolution for centuries. With the advent of civilization, war’s younger brother, litigation, became the resolution tool of choice. “Then, at the beginning of the Cold War (1950’s and 1960’s) with the development of nuclear weapons and their threat to human survival, a group of pioneers from different disciplines saw the value of studying conflict, as a separate discipline, whether in international relations or in families.1” They saw the potential of applying developing approaches in fields as disparate as social psychology, industrial relations and systems conflict theory. After initial resistance, their ideas and findings began to be accepted and the field of conflict resolution grew and spread during the 1970’s and 1980’s.
Alternative Dispute Resolution is of two historic types. Firstly, methods for resolving disputes outside of the official judicial mechanisms and Secondly, informal methods attached to or pendant to official judicial mechanisms. There are in addition free-standing and or independent methods, such as mediation programs and ombuds offices within organizations. The methods are similar, whether or not they are pendant, and generally use similar tool or skill sets, which are basically sub-sets of the skills of negotiation.
Chapter 2. Alternative Dispute Resolution (ADR):
ADR typically refers to processes and techniques of resolving disputes that fall outside of the judicial process (formal litigation – court). Courts are increasingly requiring some parties to utilize ADR of some type, most often mediation, before permitting the parties’ cases to be heard. “There are generally four categories of ADR. These are mediation, arbitration, negotiation and collaborative law. Conciliation is sometimes included as a fifth category. All ADR procedures, but negotiation, include the presence of a neutral person capable of providing an unbiased opinion who acts as a facilitator or decision maker. An exception exists with collaborative divorce or collaborative law where each party retains counsel who assists in the resolution process through explicitly contracted terms” 2.
The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.
Alternative Dispute Resolution (ADR) also known as external dispute resolution in some countries, such as Australia, includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. ADR basically is an alternative to a formal court hearing or litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party. ADR are ways and methods of resolving disputes outside the judicial process (formal litigation – court).
Chapter 3. Types and features of ADR
ADR is generally classified into at least four types:
c. Collaborative law,
d. Arbitration. (Sometimes a fifth type, conciliation.)
ADR includes informal tribunals, informal meditative processes, formal tribunals and formal meditative processes. “The classic formal tribunal forms of ADR are arbitration (both binding and advisory or non-binding) and private judges (either sitting alone, on panels or over summary jury trials). The classic formal meditative process is referral for mediation before a court appointed mediator or mediation panel. Structured transformative mediation as used by the U.S. Postal Service is a formal process. Classic informal methods include social processes, referrals to non-formal authorities (such as a respected member of a trade or social group) and intercession. The major differences between formal and informal processes are (a) pendency to a court procedure and (b) the possession or lack of a formal structure for the application of the procedure.”
Finally, it is important to realize that conflict resolution is one major goal of all the ADR processes. If a process leads to resolution, it is a dispute resolution process. The salient features of each type are as follows:
- In negotiation, participation is voluntary and there is no third party who facilitates the resolution process or imposes a resolution. (NB – a third party like a chaplain or organizational ombudsperson or social worker or a skilled friend may be coaching one or both of the parties behind the scene, a process called “Helping People Help Themselves” – see Helping People Help Themselves, in Negotiation Journal July 1990, pp. 239–248, which includes a section on helping someone draft a letter to someone who is perceived to have wronged them.)
- In mediation, there is a third party, a mediator, who facilitates the resolution process (and may even suggest a resolution, typically known as a “mediator’s proposal”), but does not impose a resolution on the parties. In some countries (for example, the United Kingdom), ADR is synonymous with what is generally referred to as mediation in other countries.
- In collaborative law or collaborative divorce, “each party has an attorney who facilitates the resolution process within specifically contracted terms. The parties reach agreement with support of the attorneys (who are trained in the process) and mutually-agreed experts. No one imposes a resolution on the parties. However, the process is a formalized process that is part of the litigation and court system.” Rather than being an Alternative Resolution methodology it is a litigation variant that happens to rely on ADR like attitudes and processes.
- In arbitration,” participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. This is known as a ‘Scott Avery Clause’. In recent years, the enforceability of arbitration clauses, particularly in the context of consumer agreements (e.g., credit card agreements), has drawn scrutiny from courts. Although parties may appeal arbitration outcomes to courts, such appeals face an exacting standard of review.”
Chapter 4. ADR Mechanisms
Alternative dispute resolution can be formal or informal, meaning it can be an official part of any official legal proceeding, or it can be made available to parties to a conflict without the supervision of a court. Alternative dispute resolution is a way for the parties to negotiate their own settlement. The settlement can be legally binding. Alternative dispute resolution also tends to focus more on the interests of the parties as opposed to a legal hearing in which the only things considered are the rights of the parties and the law.
Judicial dispute resolution:
The most common form of judicial dispute resolution is litigation. Litigation is initiated when one party files suit against another. In the United States, litigation is facilitated by the government within federal, state, and municipal courts. The proceedings are very formal and are governed by rules, such as rules of evidence and procedure, which are established by the legislature. Outcomes are decided by an impartial judge and/or jury, based on the factual questions of the case and the application law. The verdict of the court is binding, not advisory; however, both parties have the right to appeal the judgment to a higher court. Judicial dispute resolution is typically adversarial in nature, for example, involving antagonistic parties or opposing interests seeking an outcome most favorable to their position.
Retired judges or private lawyers often become arbitrators or mediators; however, trained and qualified non-legal dispute resolution specialists form a growing body within the field of ADR. In the United States of America, many states now have mediation or other ADR programs annexed to the courts, to facilitate settlement of lawsuits.
Extrajudicial dispute resolution
Some use the term dispute resolution to refer only to alternative dispute resolution (ADR),” that is, extrajudicial processes such as arbitration, collaborative law, and mediation used to resolve conflict and potential conflict between and among individuals, business entities, governmental agencies, and (in the public international law context) states. ADR generally depends on agreement by the parties to use ADR processes, either before or after a dispute has arisen. ADR has experienced steadily increasing acceptance and utilization because of a perception of greater flexibility, costs below those of traditional litigation, and speedy resolution of disputes, among other perceived advantages. However, some have criticized these methods as taking away the right to seek redress of grievances in the courts, suggesting that extrajudicial dispute resolution may not offer the fairest way for parties not in an equal bargaining relationship, for example in a dispute between a consumer and a large corporation.”
Chapter 5. Bangladesh Case Study:
Five Bangladeshi NGOs have been subcontractedby the Democracy Partnership (whichincludes USAID, the Asia Foundation, andBRAC—“ Bangladesh’s largest NGO) to deliveron Intermediate Result 5 within USAID’sstrategic objective “broadened participation inlocal decision making and more equitable justice,especially for women.” IR5 states that the”quality of alternative dispute resolution [inBangladesh be] improved.” Each of theorganizations has designed their delivery vehicleslightly different. Of these five, two NGOprograms were observed and one of them will be described in detail here — the Madaripur LegalAid Association (MLAA).MLAA was established in 1978 as alegal aid foundation. In 1981, MLAA beganfiling cases in court on behalf of their clients. The procedures used by MLAA are based on a long tradition of mediation in Bangladesh, an indigenous method called”shalish”. The MLAA has constructed a program which builds on the existing indigenous Conducted by Elizabeth McClintock, CMG Consultant, September, 1997. system and in a sense, “remodels” it. The MLAA program is especially sensitive to issues of religion and tradition, while being careful to operate within the law.”
Chapter 6. Advantages, Disadvantages and Limitations of ADR:
ADR processes are generally faster and less expensive than pursuing litigation through the courts. In addition, ADR processes allow the people in dispute, in consultation with the dispute resolution practitioner, to retain more control and, with the exception of some determinative processes such as arbitration, to determine the outcome. ADR processes may also be less damaging to personal and professional relationships than the adversarial processes involved in a traditional court hearing. Even where ADR does not fully resolve a conflict, it may help the participants to see the other person’s point of view and to identify the key issues that are in dispute. That may mean that even though the dispute is not fully resolved in the ADR process itself, a resolution will be reached sooner than it would have been if ADR had not been used.
- Suitability for multi-party disputes
- Flexibility of procedure – the process is determined and controlled by the parties the dispute
- Lower costs
- Less complexity (“less is more”)
- Parties choice of neutral third party (and therefore expertise in area of dispute) to direct negotiations/adjudicate
- Likelihood and speed of settlements
- Practical solutions tailored to parties’ interests and needs (not rights and wants, as they may perceive them)
- Durability of agreements
- The preservation of relationships; and the preservation of reputations.
- Faster’s cooperation by allowing the parties to work together with the neutral to resolve the dispute and mutually agree to a remedy.
- Often less stressful than litigation. Most people have reported a high degree of satisfaction with ADR.
Disadvantages of ADR
- ADR may not be suitable for every dispute.
- If the ADR process is binding, the parties normally give up most court protections, including a decision by a judge or jury under formal rules of evidence and procedure, and review for legal error by an appellate court.
- ADR may not be effective if it takes place before the parties have sufficient information to resolve the dispute.
- The neutral may charge a fee for his or her services. If the dispute is not resolved through ADR, the parties may then have to face the usual and traditional costs, such as attorney’s fees and expert fees.
Lawsuits must be brought within specified periods of time, known as Statutes of Limitations.
The Limitations of ADR
Although ADR programs can play an important role in many development efforts, they are ineffective, and perhaps even counterproductive, in serving some goals related to rule of law initiatives. In particular, ADR is not an effective means to: Define, refine, establish and promote a legal framework. Redress pervasive injustice, discrimination, or human rights problems. Resolve disputes between parties who
Possess greatly different levels of power or authority. Resolve cases that require public sanction. Resolve disputes involving disputants or interested parties who refuse to participate, or cannot participate, in the ADR process.
A. ADR programs do not set precedent, refine legal norms, or establish broad community or national standards, nor do they promote a consistent application of legal rules
B. ADR programs cannot correct systemic injustice, discrimination, or violations of human rights.
C. ADR programs do not work well in the context of extreme power imbalance between parties.
D. ADR settlements do not have any educational, punitive, or deterrent effect on the population..
E. It is inappropriate to use ADR to resolve multi-party cases in which some of the parties or stakeholders do not participate.
Parties must be careful not to let a Statute of Limitation run while a dispute is in an ADR process.
Michigan Taxonomy of Alternative Dispute Resolution Processes:
This is a brief survey of alternative dispute resolution (ADR) processes which can be found in various Michigan trial courts. “All processes outlined below have been or are currently utilized in Michigan, although not in all courts, and in varying degrees. One key dynamic supporting the increased use of ADR processes nationally is that approximately 98 percent of all civil matters are disposed without adjudication by trial. Knowing this, policy makers, judges, lawyers, and citizens are concluding that since it is in the best interests of the parties and courts (and thus the public) to discover how best to achieve just settlements as early as possible. “
The following survey is a “taxonomy” of processes which can be used to help parties resolve matters without formal adjudication by a judge or jury. The processes surveyed here are:
3. General Civil Mediation (MCR 2.411)
4. Domestic Relations Mediation (MCR 3.216)
5. Friend of the Court Mediation
6. Community Dispute Resolution Program
8. Early Neutral Evaluation
9. Case Evaluation (MCR 2.403)
11. Domestic Relations Arbitration
12. Mini Trial
13. Summary Jury Trial
14. Settlement Day [Week]
Chapter 7. Differences between Dispute and conflict:
(a) To argue about; debate.
(b) To question the truth or validity of; doubt: Her friends disputed her intentions.
(c) To strive to win (a prize, for example); contest for: Our team disputed the visitors’ claim to the championship.
(d) To strive against; resist: disputed the actions of his competitors.
(a) A state of open; often prolonged fighting; a battle or war.
(b) A state of disharmony between incompatible or antithetical persons, ideas, or interests; a clash.
(c) Psychology. A psychic struggle, often unconscious, resulting from the opposition or simultaneous functioning of mutually exclusive impulses, desires, or tendencies.
(d) Opposition between characters or forces in a work of drama or fiction, especially opposition that motivates or shapes the action of the plot.
Most people probably do not recognize a distinct difference between the terms “conflict” and “dispute.” However, many conflict scholars do draw a distinction between the two terms. As is unfortunately common in this field, different scholars define the terms in different ways, leading to confusion.
“One way that is particularly useful, however, is the distinction made by John Burton which distinguishes the two based on time and issues in contention. Disputes, Burton suggests are short-term disagreements that are relatively easy to resolve. Long-term, deep-rooted problems that involve seemingly non-negotiable issues and are resistant to resolution are what Burton refers to as conflicts. Though both types of disagreement can occur independently of one another, they may also be connected. In fact, one way to think about the difference between them is that short-term disputes may exist within a larger, longer conflict. A similar concept would be the notion of battles, which occur within the broader context of a war.”
Following Burton’s distinction, disputes involve interests that are negotiable. That means it is possible to find a solution that at least partially meets the interests and needs of both sides. For example, it generally is possible to find an agreeable price for a piece of merchandise. The seller may want more, the buyer may want to pay less, but eventually they can agree on a price that is acceptable to both. Likewise, co-workers may disagree about who is to do what task in an office. After negotiating, each may have to do something they did not want to do, but in exchange they will get enough of what they did want to settle the dispute.
Long-term conflicts, on the other hand, usually involve non-negotiable issues. They may involve deep-rooted moral or value differences, high-stakes distributional questions, or conflicts about who dominates whom. Fundamental human psychological needs for identity, security, and recognition are often at issue as well. None of these issues are negotiable. People will not compromise fundamental values. They will not give up their chance for a better life by submitting to continued injustice or domination, nor will they change or give up their self-identity. Deep-rooted conflicts over these types of issues tend to be drawn out and highly resistant to resolution, often escalating or evolving into intractable conflicts.
A Clarifying Example — The Cold War
While many disputes stand alone and are settled permanently, others are part of a continuing long-term conflict. Looking back at events that represent concrete manifestations of the Cold War between the United States and U.S.S.R. provides a good example of this idea. For example, each round of Strategic Arms Limitation Talks, the Cuban Missile Crisis, the U.S.-Vietnam War, and the Soviet invasion of Afghanistan all constitute disputes within the broader conflict of the Cold War. The Vietnam War was extremely serious and relatively long, but nonetheless was a short-term conflict or “dispute” in the context of the Cold War, which played out over more than 40 years. However, as this example illustrates, even the most resolution-resistant conflicts can be transformed and resolved. While the U.S. and Russia are not “best friends” today, their relationship is certainly much more positive now than it was during the Cold War. Moreover, expectations for a U.S.-Russian war are now far more remote.
Other Distinctions between Conflict and Dispute:
Costintino and Merchant define conflict as the fundamental disagreement between two parties, of which a dispute is one possible outcome. (Conciliation, conflict avoidance, or capitulations are other outcomes.) This is similar to Douglas Yarn’s observation that conflict is a state, rather than a process. People who have opposing interests, values, or needs are in a state of conflict, which may be latent (meaning not acted upon) or manifest, in which case it is brought forward in the form of a dispute or disputing process. In this sense, “a conflict can exist without a dispute, but a dispute cannot exist without a conflict.
Implications for Intractable Conflicts:
Although all of these definitions have merit, most scholars agree that intractable conflicts are deep-rooted, protracted, and resistant to resolution. However, there are ups and downs in the life of such conflicts. Episodes occur in which the fighting (physical or psychological) is intense; at other times it subsides. The view that each intense period is a dispute which ends when the dispute (though not the conflict) is settled or resolved is a useful way to distinguish the normal ebb and flow of intractable conflicts.
See, for example, the figure provided on the next page.” This figure illustrates the relationship in an imaginary dispute between two ethnic groups in a post-colonial society named Dufountain. The two groups in this hypothetical country are the “Duists” and the “Fountists.” Time runs from left to right. Each of the sets of fat arrows represents one “dispute.” In this illustration, five disputes occur. The first one results in improved policies for the Duists (shown by the solid black arrows going up toward the top of the page). The next two benefit the Fountists. The fourth one benefits the Duists, while the final dispute on this diagram favors the Fountists again. None of the disputes resolves the long-term, underlying conflict (represented by the thick horizontal arrow at the bottom of the diagram; the dispute settlements only alter social policies for a time in a way that favors one group more than another Whenever the losing group believes that it has gained enough power to prevail in a later dispute, it will most likely try again to engage the opponent and force an outcome that is more favorable to them than the earlier dispute outcome was. For this reason, dispute settlement is not the same thing as conflict resolution. One is a temporary settlement of an immediate problem; the other is a long-term settlement of an underlying long-running conflict.
This diagram was created by Guy Burgess and Heidi Burgess and was copied with permission from their Online Training Program on Intractable Conflicts (a predecessor to this project).
“’Conflict’ and ‘dispute’ are two distinct notions. The conceptual difference between the two is explored and further reviewed through the literature on conflict and dispute in the field of construction; taxonomy for future study is also introduced. Conflict, it is proposed, exists wherever there is incompatibility of interest, and therefore is pandemic. Conflict can be managed, possibly to the extent of preventing a dispute resulting from the conflict. Dispute is associated with distinct justifiable issues. Disputes require resolution. This means that they can be managed: the process of dispute resolution lends itself to third party intervention. The construction industry and the chemical process industry in the UK are compared, through perceptions and experiences of conflict and disputes arising from their two sets of standard contract forms”<href=”#_ftn2″ name=”_ftnref2″ title=””>. The methodology is a review of published cases and a survey conducted among professionals with experience. The paucity of research in this field is discussed and the empirical work on the causes of conflict and dispute is reviewed. It is concluded that effective management of conflicts and disputes would be furthered by separating the two fields, and particularly by applying a more stringent structuring.
The scholar John Burton makes a distinction between the two by suggesting that disputes are short-term phenomena, while conflicts are long-term problems.
Further, Burton suggests that a critical distinction between the two is that conflicts, unlike disputes, manifest themselves in issues that are seemingly non-negotiable.
A useful way to consider the two are as a larger umbrella of conflict, under which smaller, and more short-term disputes occur.
Disputes are usually centered on the fact that the needs of one or two parties are not being met. The resolution of this problem can usually resolve the specific dispute at hand.
Conflicts are often centered on more difficult topics. A conflict often hinges on high-stakes moral values that aren’t easily negotiable”The term ‘Conflict Resolution’ is becoming more associated with globalization, urbanization, and community/cultural diversity than between two individuals. Two individuals generally have a resolvable dispute, not a conflict. As discussed above, conflicts are issue clashes between two opposing groups or individuals. Two people with a disagreement seldom have a conflict unless it involves a serious or life-threatening issue that is completely non-negotiable. Conflicts normally are group/community-related where societal pressure and principles are drawn an ‘initial’ disagreement.”<href=”#_ftn3″ name=”_ftnref3″ title=””> Have you ever had the experience of not liking something but not knowing really why? Perhaps it is based on hearsay or inherited perceived notions. This is a good example of how societal pressure and principles work. In a way we become captive and feel it is our nature without directly experiencing the ‘initial’ disagreement. This is conflict.