WHAT ARE THE MAIN FORMS OF ALTERNATIVE DISPUTE RESOLUTION?

Alternative Dispute Resolution (ADR) is an alternate way of dispute resolution apart from traditional litigation. It includes methods and techniques used to resolve disputes between parties who are at odds with each other with a third party's help. ADR is adopted as a method to settle disputes parallel to the court system.

Despite the previous backlash to ADR by many famous parties and their advocates, ADR has successfully gained acceptance among the general public and legal professionals in the last few years. Moreover, few courts now have a prerequisite for some parties to resort to ADR of any type, generally Mediation, before allowing them to try their cases in Court. Even parties to merger and acquisition transactions are turning to ADR to resolve their post-acquisition disputes.

The demand for ADR has increased due to a surge in cases of traditional courts. ADR also serves in a way by costing less than litigation, a preference for confidentiality, and the parties' choice and consent to control over the selection of the individuals who will decide their dispute. A few judiciaries in certain jurisdictions, including England and Wales, favor this (ADR) mediation to resolve disputes.

After the 1990s, multiple American courts have also encouraged to promote the use of ADR to resolve disputes. In simpler words, Alternative Dispute Resolution (ADR) is a way to resolve disputes without litigation. Using ADR methods, one can reduce his litigation period, court expenses and expeditiously resolve disputes. There are different forms of alternative dispute resolution, which include as follows:

1) Facilitation

Facilitation is a process in which an impartial third party assists a group in resolving a dispute, coming to an agreement, and making any decision. It is the least formal procedure of the ADR. The impartial/neutral third-party aims to work with both sides to get a solution to their dispute.

The facilitation impliedly assumes that the parties want to reason the dispute and make a settlement. The negotiation can be done through telephone contacts, written correspondence, or e-mail. Facilitation is even used by judges sometimes at settlement teleconferences exploring the alternatives to resolve the dispute by taking them to courts.

2) Mediation

Mediation is a more formal and confidential form of negotiation in which an impartial third party attempts to resolve a dispute between the parties. Mediation is effective when a process is needed to resolve a conflict between two or more individuals or organizations. In Mediation, parties have more control of the outcome with an impartial mediator who assists the parties in finding a mutually agreeable resolution to the dispute.

The parties control the matter of discussions, and any agreement is mutually agreed upon. Usually, the session starts with each party telling their story. The mediator listens and assists the parties in identifying the issues in their dispute and offers options for resolution by formulating a settlement. There are different forms of Mediation which include:

a) Face to Face -

Parties directly communicate during the Mediation

b) Shuttle -

The mediator approaches the parties and shuttles between each one with different propositions of settlement

c) Facilitative -

The mediator lets the parties communicate with each other and come to an agreement.

d) Evaluative -

The mediator evaluates the merit of the parties' claims during separate meetings and puts forth different settlement proposals.

Thus, Mediation can be considered when the parties have a relationship they want to preserve. For instance, when there's a dispute between family members, neighbors, or business partners, mediation ADR can be apt and effective. Mediation is available to the parties even during the litigation process or appeal.

3) Arbitration

Arbitration is the most formal type of ADR procedure. It takes away the control from the parties in influencing the decision. The arbitrator hears the arguments, takes evidence from the parties, and then decides how to resolve the dispute. Nevertheless, arbitration is less formal than court trials, and even the rules of evidence are a bit relaxed. Each party has to present relevant arguments and appropriate evidence during the hearing.

In Mediation, there isn't any facilitative discussion between the parties, unlike other forms of ADR. The award is more supported by a reasoned and judicious opinion. Arbitration can be 'binding' or 'non-binding.' In binding arbitration, the parties had relinquished their right to the trial and agreed to accept the arbitrator's decision as final.

Generally, there is no right to appeal the decision. If there is a specified binding arbitration clause in the contract, any dispute which arises in the future must resort to arbitration. In non-binding arbitration, the parties request a trial if they disagree with the arbitrator's decision.

Arbitration is good for cases where the parties intend to settle disputes with an impartial third party's assistance and avoid hefty court expenses and a prolonged trial period. It is also appropriate if the parties want a decision-maker experienced in the subject of that dispute.

4) Neutral Evaluation

Neutral Evaluation is a procedure in which each party to the dispute presents its relevant arguments, appropriate evidence to a neutral party who gives an unbiased opinion on the merits and demerits of each parties' evidence and arguments settles the dispute. It is more effective where the dispute's subject matter needs an expert's opinion of that field.

The evaluator's opinion is considered to negotiate a settlement. Neutral Evaluation is effective for cases with technical issues requiring an expert and cases where parties don't have any evidently emotional or personal impediments to resolve the dispute by reaching a settlement.

5) Settlement Conferences

Settlement Conferences can be wilfully or compulsory depending upon the judge. The parties meet with the judge or a referee to discuss a possible settlement for their dispute. The judge does not make a decision but assists the parties in assessing their case's merits and demerits.

6) Community Dispute Resolution Program

In some jurisdictions abroad, there's a form of ADR known as the Community Dispute Resolution Program. In this program, the Centre appointed with staff and trained community volunteers provides low-cost Mediation as an alternative to expensive court procedures. This form of Mediation is formulated to deal with landlord/tenant conflicts, business dissolutions, land disputes, etc.

ADR is becoming more convenient and thus more famous across the country. The main reason parties prefer ADR is that, unlike traditional litigation, ADR proceedings allow the parties to understand the other party's position, avoid hefty court expenses and reduce the time required to resolve the dispute, which can be years in Court proceedings.

Author: Shweta Singh