Alternative Dispute Resolution

What is ADR?

ADR is most commonly used as an acronym for alternative dispute resolution, which encompasses a range of alternatives to litigation and formal adjudication (Yarn 1999). Recently, it has also been used to refer to appropriate dispute resolution, which suggests that there is nothing “alternative” about ADR processes and that they are significant in and of themselves. Despite these distinctions, ADR has emerged as a comprehensive term that captures the widespread efforts and processes focusing on less combative, more collaborative, and more efficient ways of handling all kinds of legal matters. The term has also been used to refer to techniques, methods, and procedures used in a variety of other situations beyond the judicial litigation context. In the criminal context, it refers to the application of selected dispute resolution processes to a wide range of interventions, from prearrest to postconviction, many of which are not specifically related to the traditional judicial setting.

There is no universal agreement on what processes qualify as ADR. Moreover, the dispute resolution processes encompassed under the ADR umbrella are very diverse. They lie along a continuum, ranging from informal discussion and complete empowerment of affected parties to processes akin to formal adjudication, where decisions are made by a third party (though these are not as formal as traditional court processes, as relaxed rules of evidence and procedure are generally used). However, ADR processes can be divided into three categories, which emphasize negotiation, mediation, and arbitration.

In the first category, parties themselves work through their own concerns, without assistance by any intermediaries. Through direct communication, the parties exchange information that will enable them to [Page 16]reach a solution that is mutually beneficial. This process is referred to as negotiation. Negotiation efforts can be quite varied, depending on the negotiator's style and skills, the context of the operations, the relevant issues, and the available options. The type of negotiation that has captured widespread attention has been referred to as principled or interest-based negotiation (Fisher et al. 1991). Parties focus on their needs and concerns instead of the positions they take on issues. It is widely believed that if parties remain focused on positions, they will become pitted against each other and expect outcomes with a win-lose quality to them. When parties focus on needs, however, they tend to become more creative problem solvers and focus on mutual gains. Their negotiated outcomes have a win-win quality.

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