With rising legal costs many people are looking to resolve their disputes outside of court. This is often achieved using Alternative Dispute Resolution (ADR) methods. But what are the options available for Alternative Dispute Resolution and what does each entail? Here’s our guide to the different types and requirements of each method.
One of the most common methods of ADR is mediation. Mediation seeks to find a solution that is acceptable to all parties involved in a dispute. This is done through the intervention of an independent, impartial mediator. The mediator will facilitate dialogue in a structured process, to help parties reach a conclusive and mutually satisfactory agreement.
Mediation is a completely voluntary and confidential form of Alternative Dispute Resolution, that relies on the cooperation of all parties involved.
As well as resolving disputes, it can be an incredibly effective method of ADR for improving relationships between parties.
There are several different styles of mediation and the type of proceedings can be tailored depending on the dispute topic, participants and their relationships. Choosing the right style and type of mediation is critical in making sure that mediation is a success.
Conciliation is an alternative to mediation that seeks to build positive relationships between the parties. Mediation focuses on the problem and finding the best way to solve it. Whereas conciliation focuses on what each party wants and tries to find a way of resolving the problem, so that everyone is happy. It is often used where the parties are in need of restoring or repairing relationships.
In conciliation, an appointed third party conciliator meets with the disputants both separately and together, in an attempt to resolve their differences. It is important to note that the conciliation process has no legal standing.
Arbitration is an Alternative Dispute Resolution method where the disputing parties present their disagreement to either one, or a panel of arbitrators. The arbitrator/s make a firm decision about the case, based on the evidence presented by the parties.
Arbitration is a formal process that is very similar to litigation. It involves much of the argument and procedure that occurs in a court trial. However, it also offers greater flexibility, as parties can choose the arbitrator and location of the proceedings.
Arbitration allows the parties to choose and agree on the arbitrator, who is often an industry specific expert. Hearings are in private, and the arbitrator’s decision is legally binding, as long as it is supported by a written arbitration agreement.
Arbitration is voluntary, so all parties must agree to actively participate and abide by the arbitrator’s decision.
Another method of Alternative Dispute Resolution is adjudication. It tends to be less formal than arbitration. But similarly, the adjudicator is usually an expert in the topic and will be appointed by the disputants.
The main difference between adjudication and arbitration is that with adjudication, you can take your problem to court if you’re not happy with the outcome. With arbitration you will have to go with arbitrator’s decision and you may not be able to go to court later if you don’t agree with the outcome.
Negotiation is a very different method of Alternative Dispute Resolution. Participation is still voluntary but there is no independent third party to facilitate the process or imposes a resolution.
The process itself is often very similar to mediation; all parties agree to present their dispute and find a suitable resolution. However, the parties agree to manage the proceedings themselves. They decide whether negotiations will be conducted in writing, over the telephone or face-to-face.
The effectiveness of the proceedings is subject to all parties agreeing to adhere to a solution, once one has been determined.
Making the right choice
Without doubt it is imperative you consider your choice of ADR carefully. The complaint, the participants and the history are fundamental to your choice. But equally, the willingness of all the disputants to find a resolution, will play an important part in your decision. Avoiding costly court fees is preferable, but for any style of ADR to be successful, every party involved must want to find a resolution.