Alternative Dispute Resolution

Alternative dispute resolution (ADR) is an umbrella term embracing various processes principally designed to overcome some of the alleged weaknesses in litigation. For instance, ADR is generally cheaper, less adversarial, and simpler than litigation, and ADR techniques offer a greater range of remedies than the courts. Contracts can be renegotiated and settlements can include nonlegal concessions such as providing a reference where there is an employment dispute. Moreover, ADR is generally speedier than litigation.

First used extensively in the United States in the 1970s, ADR then spread to other common law countries and is used in many situations; for instance, where there are commercial, accounting, construction, employment, and family disputes. It ranges from morally (and sometimes legally) binding decision making by a third party, such as arbitration, to nonbinding processes such as mediation and conciliation. These processes, which are court annexed in some jurisdictions in some countries, are described below. Arbitration is probably the oldest of ADR processes and can best be described as noncourt adjudication. Procedurally, an arbitration hearing is less formal than a court hearing; for example, the former normally has no formal rules of evidence. Furthermore, arbitration is private unlike a court, and there is finality. Appeals from an arbitrator's decision are severely limited, essentially to questions of procedural fairness and the arbitrator's conduct. Also, arbitration is generally speedier than litigation, and normally the parties choose the arbitrator as well as the time and place.

Arbitration can take various forms. In the most common variant, the arbitrator chooses anywhere between the limits (offers) set by the parties. Alternatively, the arbitrator is restricted to opting for either one party's final offer or the other party's final offer, but nothing in-between. This final offer arbitration is sometimes called flip-flop arbitration. A third variant is where the arbitrator makes a decision and then the offer of the party closest to the arbitrator's decision is the formal arbitration award.

Mediation and conciliation-and the terms are often used interchangeably-are becoming increasingly popular. Both mediation and conciliation are voluntary, nonbinding, confidential, without prejudice, and without precedent processes. Their aim is to assist people to talk to each other in a rational and problem-solving way and to bring realism and objectivity to a dispute. Whereas lawyers focus on rights, mediators/conciliators focus on interests and the needs of the parties and act as a catalyst to enable the parties to communicate with each other and identify common ground, essentially assisting negotiation. Mediators and conciliators, however, vary in the extent to which their main aim is therapeutic or their main aim is to obtain a settlement and how interventionist they are. Some are mainly messengers, shuttling back and forth with offers. Others not only seek to persuade the parties to settle by giving opinions on facts, law, and evidence but also make recommendations.

Although arbitration, mediation, and conciliation are the most common ADR processes, there are others including med-arb, ombudsmen, and mini-trials. In the United States and South Africa, med-arb is practiced: with the consent of the parties, the same person mediates and, if that is unsuccessful, then arbitrates. Ombudsmen, increasingly available in the United Kingdom, deal with complaints from individuals about public bodies and private sector services such as insurance, banking, and rentals. Once the organization has had an opportunity to deal with the complaint, the complainant can then go to the relevant ombudsman who will investigate the matter and suggest a resolution. As with mediation, the ombudsman procedure does not prevent complainants from entering another ADR process or embarking on litigation. Mini-trials are formalized settlement conferences where representatives of the disputants make short presentations and adjudicator(s) give a decision that, however, is not binding on any party, unless or until they agree to settle.

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