Discuss the different types of Alternative Dispute resolution (ADR) and their proceeding with especial emphasis on common ADR mechanism.

1. 1.     Introduction

The term “alternative dispute resolution” or “ADR”[1] is frequently used to explain a wide range of dispute resolution mechanisms that are short of, or alternative to, full-scale court methods. The term can refer to everything from simplified settlement negotiations[2] in which disputants are stimulated to negotiate directly with each other proceeding to some other legal process, to settlement systems or mini-trials that look and sense very much similar to a courtroom procedure[3]. Processes planned to manage community tension or simplify community improvement issues can also be involved within the rubric of ADR. ADR systems may be commonly categorized as negotiation, conciliation/mediation, or arbitration systems[4].

 

1. 2.     Types of Alternative Dispute Resolution

The type of ADR is difference from country to country. Some countries only use the very common ADR for all types of solution where country like US[5] where different type of ADR is used in different sectors. What is new is the widespread promotion and proliferation of ADR models, and the increasing use of common ADR types.

1. a.      Preventive ADR Mechanisms

In this type of ADR mechanism it is known that encounter is inescapable, so it is essential to channel dissimilarities into a problem-solving ground early enough to evade acceleration into full-blown arguments. Besides resolving the conflict previously, it is also vital to involve the parties in creating at the outset how any variance or encounter will be handled before the dispute rises. Preventive ADR is typically used in construction and employment division[6] [7]. There are three types of preventive ADR mechanism; these are:

1.            i.      ADR Clauses: It is a commonly stated principle in alternative dispute resolution works that contracts ought to contain necessities dealing with the resolution of disputes. It is similarly often stated that it is difficult to develop a clause of worldwide application. Each arrangement must address the precise conditions of that agreement and those conditions will dictate the procedures which should be used in the occasion of a dispute.
2.          ii.      Partnering: A Partnering Platform was established within the Department of Justice (DOJ)[8], Federal Bureau of Prisons (BOP)[9] that endorses an Alternative Dispute Resolution (ADR) procedure to be used with all design/build building agreements for new prisons. The ADR procedure is called “Partnering.”
3.        iii.      Negotiation: Negotiation is an interchange among two or more people or parties, planned to reach an understanding, resolve point of alteration, or gain advantage in outcome of discussion, to produce an agreement upon courses of action, to reduce for individual or shared advantage, to craft consequences to satisfy various interests of two people/parties involved in cooperation process[10].

 

 When it is used

Negotiation occurs in commercial, non-profit organizations, and government branches, legal reports, among national and in individual circumstances such as

• Marriage
• Divorce
• Parenting
• Everyday life
• Union negotiators
• Leverage takeover negotiators
• Peace negotiators
• Captive negotiators
• How it works

Negotiation naturally manifests itself with skilled negotiator acting on behalf of a specific organization or position. It can be associated to mediation where a neutral third party attends to each side’s arguments and efforts to help craft an agreement between the parties. It is also connected to arbitration which, as with a lawful proceeding, both sides make a quarrel as to the merits of their “case” and then the arbitrator chooses the outcome for both gatherings.

• Cost

The cost of Negotiation varies with the kind of negotiation or parties that are involved in the process

• Barriers to negotiations
  • Die hard bargainers
  • Lack of trust
  • Informational vacuums and the negotiator’s dilemma
  • Structural impediments
  • Spoilers
  • Cultural and gender differences
  • Communication problems
  • The power of dialogue

 

1. b.      Facilitative ADR Mechanisms

Facilitate basically means; make easy, assist forward, encourage expedite[11]. Facilitation is a procedure where a impartial whose choice is acceptable to all parties of a encounter and who has no practical decision-making authority, analyzes and interferes to help the parties improve how it recognizes and answers problems and makes choices to increase the effectiveness[12]. The role of the impartial person is to assist the parties to choose a mutually satisfactory arrangement between the parties, but he/she doesn’t have optional or influential role. This category of ADR contains the process of mediation.

1.            i.      Mediation:

Mediation is an independent third party that helps parties with an argument to try to spread an agreement. The persons with the argument, not the mediator, choose whether they can determine things, and what the consequence should be.

 All mediation has the succeeding in mutual:

• It is unpaid.
• It is private and confidential.
• Both parties make the final decision on how to resolve the dispute
• The mediator is impartial
• The mediator is independent
• When it is used

Mediation is the most widespread ADR procedure and is used in many extents of argument, including:

• business
• consumer goods and services
• divorce and departure
• education – schools, colleges, universities
• discrimination
• housing
• global politics
• medical negligence
• neighbors
• personal injury
• small claims
• hate crimes
• workplace and employment
• young people at risk of homelessness
• youth crime
• How it works

Normally, mediations take place in a neutral venue – a residence that is not related with one side or the other[13]. Many mediation workers have their own workplaces where mediations can take place. They can also position for mediations to take place in suitable local venues. Facility can also be made for nearby premises and any special wants.

• Cost

The price of mediation differs. Most public mediation – used for resolving arguments between neighbors, for instance – is free to the gatherings. Family mediation is typically obtainable at an hourly amount. Public and commercial mediation rates have a tendency to to be expensive and are usually grounded on the value of the dispute or privilege. Small rights mediation is provided by a court-based mediation officer, and is free when you have waged your court application fee[14].

• Outcomes

There are no specific outcomes in this. The variety of remedies that can be attained is as wide as it can be. Common consequences are:

• an confession
• an explanation
• a change in behavior, policy or process
• a promise to do or evade doing something
• an contract about contact or residence provisions for children
• an agreement about stuff or financial provisions after separation or divorce
• an agreement to return to work, or to resume a course at university
• compensation
• repayments
• Replacement of properties

1. c.       Advisory ADR Mechanisms

Advisory ADR mechanism includes a neutral and self-governing third party who contributions the parties in reaching a equally acceptable agreement by assessing the positions of the parties. In this process third party advises the parties and also recommends choices for the resolution of the dispute. Advisory ADR mechanism comprises cooperative lawyering and conciliation. Conciliation is similar to mediation but in conciliation, conciliator takes more interventionist part and attempts to settle the argument whereas mediator just tries to guide the conversation and reframes representations.

1.            i.      Litigation or collaborative law:

Adjudication contains a self-governing third party – the adjudicator – considering the rights of both sides and making a result. This is typically done on paper. Both sides send in printed particulars of their quarrel, with copies of any letters, reports or other sign. The adjudicator then makes a choice based on this evidence, and on what is usually considered to be good repetition in the commercial concerned. The adjudicator is typically a skilled in the subject matter in dispute.

• When it is used

Adjudication[15] is dispute resolution schemes run by trade relatives to deal with customer complaints about their associates, or in schemes set up to deal with public disputes about service given, but which are not about big sums of cash.

• How it works

Each scheme is somewhat different, but there is a mutual procedure which will be trailed in most cases.

Resolving the dispute may be impossible for a number of reasons:

• The corporation may not agree with the complaint
• The corporation may sends a letter making an offer that the individual are not happy with
• The corporation may fail to respond to the complaint within a sensible time.
• Cost
  Most schemes are free to customers.

1. d.      Determinative ADR Mechanisms

Determinative ADR mechanisms are in the additional argumentative part of the ADR spectrum. These instruments involve an unbiased and self-governing third party who hears the both parties and extracts a theoretically enforceable decision[16]. This type of ADR contains the procedures of adjudication, adjudication, and expert purpose and compared to other ADR mechanisms party regulator declines in this side of the spectrum.

1.            i.      Arbitration:

Arbitration is a self-governing third party considers both sides in a argument, and makes a judgment that resolves the conflict. The arbitrator is neutral; this means he or she does not take any sides. In utmost cases the arbitrator’s choice is lawfully compulsory on both sides, so it is not conceivable to go to court if you are unhappy with the result.

Most types of arbitration have these in common:

• Both gatherings must be prepared to use the process
• It is isolated
• The choice is made by a third party, not the persons involved
• The arbitrator frequently chooses on the foundation of written material
• If there is a earshot, it is expected to be less official than court
• The procedure is closing and legally compulsory
• There are narrow grounds for provoking the decision
  • When it is used

Arbitration is used widely for global arguments, disputes between major companies, employment rights disputes, and customer disputes[17]. Arbitration[18] is distinct, and the instructions set out, in the Arbitration Act 1996[19].

• How it works

The Arbitration Act 1996 lays down severe rules for how adjudication should work. However, arbitration is planned to be less costly, less official, and more flexible than court, so the instructions of evidence are not as severe, and parties can frequently have a say in how they want the hearing to be showed in a fixed decided time given before.

• Cost

The cost of arbitration differs. Acas[20] arbitration is free to employers and employees. IDRS[21] arrangements run for employment relations or specialized bodies. They are whichever free to the customer, or they require a balanced registration fee based on the quantity of the claim.

1. e.      Collective ADR Mechanisms

Collective ADR mechanism is the effective method of confronting with multi-party situations without resorting to trials. Ombudsman arrangements are mostly shown as a sample of collective ADR mechanism.

1. f.        Court Based ADR Mechanisms:

Court based ADR mechanisms typically take place after litigation has been started and during the lead up to the beginning of a trial and are focused on reaching a clearance on some or all problems. These instruments comprise Early Neutral Evaluation, Court Settlement Masters, Court Mentioned ADR, Small Claims Court. These procedures may be overseen by a judge of the Court or a Court official.

1. 3.     Comparison of Common ADR Characteristic

The below chart demonstrations how likely or dissimilar are the common ADR mechanisms and decisions:

 

Characteristics	Litigation or collaborative law	Arbitration[22]	Mediation[23]	Negotiation
Voluntary/ Involuntary	Involuntary	Voluntary	Voluntary	Voluntary
Binding/ Nonbinding	Binding; subject to appeal	Binding Subject to review on limited grounds	If agreement, Enforceable as Contract; Sometimes agreement embodied in court decree	If agreement, enforceable as contract
Third Party	Imposed, third party neutral decision – Maker   Generally with no specialized expertise in dispute subject	Party-selected   Third-party decision maker, often with specialized subject expertise	Party-selected   Outside facilitator	No third-party facilitator
Degree of formality	Formalized and highly structured by predetermined, rigid rules	Procedurally less formal; procedural rules and substantive law may be set by parties	Usually informal, unstructured	Usually informal unstructured
Nature of Proceeding	Opportunity to present proofs and arguments	Opportunity for each party to present proofs and arguments	Unbounded presentation of evidence, arguments and interests	Unbounded presentation of evidence, arguments and interests
Outcome	Principled decision, supported by reasoned opinion	Sometimes principled decision supported by reasoned opinion; sometimes compromise without opinion	Mutually acceptable Agreement sought	Mutually acceptable Agreement sought
Private/Public	Public	Private, unless judicial review is wanted	Private	Private

 

1. 4.     Conclusion

 

In all features of business and common law, time, costs and travail can often times be sidestepped by choose to the alternative dispute resolution actions of negotiation, mediation and arbitration. Litigation should be the last option and used only if the ADR actions fail[24]. It is vital, however, that all of the parties complicated in the claim or argument approach ADR with an open mind and a willingness to concession if it is to have any casual of success. Assuming the argument includes considerable issues or sums, the extra price waged for the best negotiator is money well spent. It was understood that the best of the intermediaries’ achievement clearance of approximately 85% of the cases put before them especially in the European and North American countries. If ADR fails, the last alternate of option to the courts[25] remains in place.

1. 5.     Bibliography

 

1.         i.            Attorney General’s Report to the President on the Alternative Dispute Resolution (ADR) Working Group, http://www.usdoj.gov/adr/presireport.htm, (retrieved on 31.11.2011)
2.       ii.            Alva Orlando, The Range of Dispute Resolution Mechanisms, http://www.blaney.com/fi les/adr_range.pdf, (retrieved on 31.11.2011)
3.     iii.            A. Leo Levin, Russell R. Wheeler, The Pound Conference: Perspectives On Justice In the Future, West Publishing Co. St. Paul Minnesota, 1979
4.     iv.            Center for Democracy and Governance, Alternative Dispute Resolution Practitioners’ Guide, 1998.
5.        v.            Consumer Policy Strategy, Office of Competition and Consumer Protection, 2004-2006, Warsaw, July 2004.
6.      vi.            Contacting Otelo, http://www.otelo.org.uk/pages/39contactingotelo.php, (retrieved on 01.12.2011)
7.    vii.            David B. Lipsky, Ronald L. Seeber, & Richard D. Fincher, Emerging Systems for Managing Workplace Conflict, 2003.
8.  viii.            Europe’s Information Society, Consumer Protection, http://ec.europa.eu/information_society/policy/ecomm/todays_framework/consumer_protection/index_en.htm, (retrieved 03.12.2011)
9.      ix.            Folberg, H. Jay and Rosenberg, Joshua D., Alternative Dispute Resolution: An Empirical Analysis (1994). Stanford Law Review, Vol. 46, p. 1487,1994.
10.        x.            Law Reform Commission, Consultation paper Alternative Dispute Resolution, July 2008.
11.      xi.            Nancy D. Erbe, Facilitative ADR’s Global Popularity and Promise, Be press Legal Series, year 2004, paper 205.
12.    xii.            Ofcom, Statutory Duties and Regulatory Principles, http://www.ofcom.org.uk/about/sdrp/, (retrieved on 04.12.2011)
13.  xiii.            Stanczak, Plotr, Presentation of the ADR System in Poland, Promoting Alternative Dispute Resolution, Baltic Sea Seminar, Stockholm, 27th of May 2005.