The ADR Process

There are both advantages and disadvantages associated with alternative dispute resolution. The main advantages are that it is a cheaper and speedier process, while also being less formal compared to the strictness of court proceedings

The main disadvantages however, are the lack of precedent are procedure, while also being seen by some as a sign of weakness. This is due to the fact the most settlements reached in court cases will be far higher than those agreed up in alternative dispute resolution. As a result many feel, however wrongly or rightly, that a turn to alternative dispute resolution is a sign that they do not have much of a case.

The lawyers for both parties will review both the advantages and disadvantages of each side before deciding whether or not to engage in alternative dispute resolution. They must decide whether or not alternative dispute resolution is appropriate, and if so, which type of alternative dispute resolution would be best applied to the case

Certain types of disputes or industries lend themselves better to specific forms of alternative dispute resolution.

·         Maritime Law (Shipping Industry) disputes are best solved through arbitration

·         Employment – mediation, conciliation

·         Family - mediation

·         Complaints with public bodies – Ombudsman

·          Construction and engineering industry -adjudication

However, this is by no means set in stone. The decision may be reviewed at certain points and the lawyers for both sides may agree that a different form of alternative dispute resolution would be more appropriate to the case.

Some contracts, which specify that the two parties are to use alternative dispute resolution should a conflict arise, may further state which form of dispute resolution they wish to use. If this is the case then the parties will be bound by this clause.

Depending on the case, the lawyer may have several roles to fulfil, or may have little to do. His duties may include;

·         Advising on the different types of Alternative dispute resolution available to their client

·         Considering how alternative dispute resolution will fit in with the litigation process. For example if the dispute resolution fails and the case goes to court, how will a judge view the dispute process undertaken?

·         The lawyer may also have to prepare the case for the alternative dispute resolution process. They may have to define their client’s objectives,  prepare the necessary information for use, prepare relevant arguments and consider how to proceed should alternative dispute resolution fail

·         They may have to participate in the process, which could include presenting the case, providing information, advising their client and defining the issues

·         They may also have to advise their client of the likelihood results of the alternative dispute resolution process in comparison to the likely litigation of outcome

·         They may have to draft the final agreement, should one be reached by the two disputing parties

The three main types of alternative dispute resolution or arbitration, mediation and conciliation. However, in practice it can be far more complex.

Factors which differentiate the different types of Alternative Dispute resolution

• Whether or not independent 3^rd parties will be involved (collaborative law, negotiations etc.)
• Extent to which the 3^rd party controls or facilitates process
• Extent to which parties control the process.  Arbitration for example leaves both parties with little control, negotiation maintain lots of control
• Whether the binding decision at end of the process is made by a 3^rd party (adjudication) or parties themselves
• Whether or not the dispute resolution may end in a non-binding outcome
• Whether there is a procedure to follow. If so what is the extent of the set procedure. For example there is no set procedure for negotiation
• Role of lawyers
• Potential costs

There are two main types of alternative dispute resolution- adjudicative and non-adjudicative. Adjudicative involves a binding decision made by a third party, similar to that of a judge. Non-adjudicative does not involve this.

Preventative dispute resolution is a non-adjudicative process. It aims at avoiding a dispute before it gets out of hand. This is used by many companies both internally and externally. It is the efficient management of disputes. Will usually involve negotiation, which is an informal, voluntary communication aimed at resolving some or all of the issues and arriving at an agreement which is acceptable to both sides.

It is used to prevent disputes from escalating in the workplace. It is often built into the contract, and may be influenced by the particular industry

Facilitative Dispute resolution is also a non-adjudicative process. It involves a neutral and independent third party with no advisory or determinative role. He will try to help the parties reach an agreement which both can accept. This is often called mediation. It should be noted that this decision will not be binding

Advisory dispute resolution is a non-adjudicative process. It also involves a neutral and independent third party; however in this case he will actively assist both sides. The most common type of this is conciliation, in which the third party, called the conciliator will meet both the parties separately in an attempt to resolve their differences. They do this by lowering tensions, improving communications, interpreting issues, providing technical assistance, exploring potential solutions and bringing about a negotiated settlement.

Collaborative lawyering is another type of advisory dispute resolution.

“collaborative law is a dispute resolution option which lawyers can offer their clients to help them resolve disputes outside the formal court setting… the core focus for a solicitor trained in collaborative law must remain on developing trust and agreement between clients”                             

-O’Callaghan

It is a contractual agreement by solicitors. If unsuccessful, lawyers are barred from acting for party in the future.

Determinative dispute resolution is an adjudicative process. It involves a neutral and independent third party who will hear both sides and then make a potentially enforceable decision. The most common type is arbitration wherein A third party reviews the evidence in the case and imposes a decision that is legally binding on both sides and enforceable in the courts.

Expert determination is similar to arbitration but involves an expert in the area of dispute, who will make a decision after hearing both sides. This decision will be binding should it not be appealed

Collective dispute resolution is an adjudicative process. It usually is used where there are many parties to a dispute and often has a regulatory function. An example would be the ombudsman, who is an independent official who can review the actions of executive government to address the concerns of private citizens

Court-based litigation is a form of adjudicative dispute resolution. It occurs after litigation has been initiated and is aimed at reaching a settlement on some or all of the issues. An example would be the small claims court