Table of contents
Introduction
I. The essence of Alternative Dispute Resolution
II. Types of ADR and their peculiarities
1. Ombudsmen
2. Conciliation
3. Negotiation
4. Mediation
5. Arbitration
6. Adjudication
7. Early neutral evaluation
8. Expert determination
9. Med-arb
10. Med-rec
III. Career outlook in the field of ADR
IV. The best type of ADR suitable for me
Conclusion
The list of used resources
Introduction
Law as a science has explored various ways of solving disputes, and for centuries
the most effective and the most popular way of solving disputes was going to
court and having a formal trial. As the time went by, scientists kept on studying
other methods rather than litigation, which could be effective and justified
in solving disputes. Such methods were closely examined by The American Bar
Association, which held its usual annual convention on Hawaii in 1989. That
time convention was devoted to “Resolving Disputes in Pacific Ways”,
and it attracted many visitors. More than fifteen years after the convention
such a concept as “Alternative Dispute Resolution” became an important
substitute of litigation. For many years it has been explored and debated. It
took a significant place in the reports concerning new ways of dispute resolution
all over the United States. Alternative Dispute Resolution comprises more than
ten methods, which are “alternatives to litigation as a means of dispute
resolution” [1]. A person, who decides not to have a formal trial but
refers to ADR companies, has always a choice, concerning which method of solving
the dispute to use. Usually ADR costs less than having litigation, thus it appears
to be more attractive to people, who do not possess much money, than having
a full and formal trial. Despite of the fact that ADR is less formal than litigation,
it does result in compromise between the parties. ADR is confidential and it
offers personal treatment towards every client.
The current study was designed to explore the essence of Alternative Dispute
Resolution, its peculiarities and advantages as compared to other methods of
dispute resolution. The paper will focus on various types of ADR, including
mediation, negotiation, conciliation, arbitration and others, which are used
to resolve disputes. Pros and cons of every type of ADR will be also discussed.
I. The essence of Alternative Dispute Resolution
Due to the increasing costs to pay for litigation and the growth of court congestion,
individuals as well as whole companies slowly but steadily are starting to turn
to alternative dispute resolution in order to solve their disputes. The term
“ADR” stands for the set of methods by means of which legal conflicts
and various disputes are solved outside the courtroom. Usually ADR is less formal
than litigation, but it does include the presence of the third party to preside
over the hearing between the two disputing parties. It is also less expensive
and not so time-consuming. The specialists working at the Centre for Effective
Dispute Resolution (CEDR) gave the following definition to the term ADR: “A
body of dispute resolution techniques which avoid the inflexibility of litigation
and arbitration, and focus instead on enabling the parties to achieve a better
or similar result, with the minimum of direct and indirect cost” [7].
As it has been mentioned above there are different methods used in ADR, and
each of them possesses certain characteristics. However, it is possible to identify
certain characteristics that are peculiar to the whole process of ADR. The first
characteristic feature of ADR is that it deals with all disputes confidentially,
meaning that process of dispute resolution and its outcomes are usually kept
in secret unless it falls under certain circumstances when it has to be revealed
by a special law. ADR is more flexible than usual litigation. It leaves the
room for creativity and cooperation in order come to a common solution and to
meet the requirements of both parties. ADR gives a possibility to gain more
control over the process of dispute resolution. It involves personal communication
of all parties, who might be working or living together after the process ends.
Thus, it maintains the existing relationship, by using methods that encourage
people to cooperate in order to reach an agreement. Often it leads to the improvement
of relationship and elimination of further conflicts. ADR establishes certain
rules that govern the process of dispute solving. Methods of ADR involve third
parties’ presence, so-called neutrals. Generally, the process of ADR is
not so expensive in comparison with litigation, and it is shorter in time as
court proceedings are much more complex. ADR grants a feeling of personal satisfaction
to the parties, as they take a more active part in the process and can decide
themselves, which method of ADR to use. ADR helps to reach the compromise between
the parties, while litigation results only in satisfaction of one party. And
the last characteristic feature is the following, by means of ADR it is possible
to get to the root of a problem due to the use of personal approach. In ADR
the decision-making is the responsibility of the disputing parties or the neutral.
Though ADR has many obvious advantages as compared to usual litigation, there
are some cases, which cannot be solved by means of ADR. For example, the cases
of violence, when courts are able to provide better protection for victims of
violence, or the cases when one of the parties possess two much power. Also,
ADR is improper when “one of the parties wants the issue to be publicized
or wants the outcome to be seen as an example for other similar disputes”
[10]. Such a desire goes against usual practice of ADR. ADR cannot be used as
the means of dispute resolution, when the outcome may influence a great number
of people, “where there is a need to establish precedent”[10] and
“where a definite and broadly applicable solution is required”[10].
Court proceedings are more effective for above mentioned cases.
II. Types of ADR and their peculiarities
There is a great variety of disputes as well as great variety of methods to
handle them. Legal practice has shown that usual forensic methods of solving
disputes are not always the best at solving disputes. ADR offers a whole range
of methods, out of which the most suitable one can be chosen. Thus, the abbreviation
expansion of ADR has slightly changed, and the word “alternative”,
for which letter “A” stands, was changed into “appropriate”.
Indeed, methods used in ADR are appropriate for various disputes, including
family, business, governmental and other disputes.
Having spoken about the essence of ADR and its peculiarities, it is necessary
to explore various types of ADR, including: ombudsmen, conciliation, negotiation,
mediation, arbitration, adjudication, early neutral evaluation, expert determination,
med-arb and med-rec.
1. Ombudsmen are specialists, who are trained to examine and solve complaints
concerning public and private matters. Ombudsmen use a number of methods to
solve disputes, among which are “counselling, mediating, conciliating,
and fact-finding” [4]. After receiving a complaint, ombudsman starts to
interview the parties and examine the files; however, ombudsmen do not pronounce
judgment or solution. All ombudsmen should be independent of the disputing parties.
Normally, ombudsmen do not “consider a complaint unless the organization
or company has first been given a chance to deal with it through its own internal
complaints procedure” [9]. Ombudsmen do not have a power to impose a solution;
however, they should have an ability to persuade the parties to agree on their
recommendations. Services of ombudsmen are limited as the disputing parties
are required to reach an agreement with certain period of time (six –
twelve months). At first an ombudsman would try to resolve the conflict informally,
otherwise, he/she would have to conduct the investigation and issue a report
with his/her own conclusion.
2. Conciliation is the process, during which a conciliator (a third party or
a neutral) builds positive relationship between the disputing parties in order
to solve the dispute. “A conciliator may assist parties by helping to
establish communication, clarifying misperceptions, dealing with strong emotions,
and building the trust necessary for cooperative problem-solving” [4].
Conciliator may choose a neutral place for meeting, carry messages between the
parties and assure parties that they are able to communicate and work together.
Conciliation helps the disputing parties to start a dialogue, to build positive
attitude towards each other and to enhance trust. There are three characteristic
features concerning conciliation. The first one is that this process is totally
voluntary. It is absolutely private and confidential. After conciliation the
parties may or may not agree on the resolution. In his turn conciliator may
meet each of the parties together or separately, or may not meet them at all
and announce the resolution by phone or other mean of communication.
3. Negotiation is probably the most fundamental method of solving any dispute,
which is used more often than others. However, it does not mean that this method
is the most effective. Everything depends on the type of disputes. If the parties
are willing to communicate, this method will definitely work, if not other method
should be chosen. It can also be the quickest and the cheapest way to resolve
a dispute. As the means of ADR, negotiation can be done directly between the
parties or with the help of their representatives. The main goal of negotiation
is to reach an agreement. There are two types of negotiation: assisted negotiation,
when a neutral is chosen, and non-assisted negotiation, when the parties seek
a solution themselves.
4. Speaking about mediation it is important to note that it is very similar
to assisted negotiation. Mediation is a process of resolving a dispute by means
of third party intervention. A mediator (a neutral or a third party) works with
a single objective to help the parties reach an agreement. Mediation works effectively
in “highly-polarized disputes where the parties have either been unable
to initiate a productive dialogue, or where the parties have been talking and
have reached a seemingly insurmountable impasse” [4]. A mediator is not
authorized to make any decisions or impose solutions, however, he/she may suggest
certain ideas how to improve the relationship between the parties. Sometimes
mediators work with each party separately. There are several distinguishing
features of mediation, such as mediation is absolutely voluntary. No parties
are under obligation to take part in mediation. As any other type of ADR, mediation
is private and confidential. It is up to parties, but not a mediator, to make
the decision and resolve a dispute. The most important feature is that a mediator
should be impartial, independent and have no personal interest in the outcome.
Mediation is often used to solve disputes over divorce and separation, business
claims, consumer disputes, small claims and others. Despite of the fact that
mediation is a rather effective method, there are some cases when other methods
of solving disputes need to be used.
5. Arbitration is a “private dispute resolution process where disputing
parties agree that one or several individuals can make a decision about the
dispute after receiving evidence and hearing arguments” [5]. It is obvious
that arbitration is different from the types of ADR discussed above, as it involves
the decision-making process conducted by the third party. Generally speaking,
arbitration is similar to a formal trial. Both parties present their statements
at first, and then the arbitrator examines evidences and announces the decision.
However, arbitration is done faster and not so formally. When the arbitrator
announces the award, he/she may or may not also give the reasons for such a
decision. As any other type of ADR arbitration is private and confidential.
Before the arbitration starts both parties have to agree to participate in it.
Usually the process is legally binding (binding arbitration), meaning that the
decision is obligatory to both parties according to the law. Arbitration hearings
are less formal than formal trials, and sometimes hearings are not even necessary,
as the dispute can be resolved with the help of documents only. An arbitrator
should be a professional lawyer or an expert in a specific area of law. In some
cases if the parties cannot choose and arbitrator, he/she can be chosen by a
competent company. All of the arbitrators should be neutral and have no interest
in the outcome of the dispute.
6. Adjudication is a type of ADR, which involves the judge or a specially trained
third party, who is considering the opinions of both parties, examines the facts
and makes the decision concerning the ways how to resolve a dispute the best
way. It is similar to other types of ADR in terms of third party’s neutrality
and independence. However, unlike other types of ADR, adjudication is “an
involuntary, adversarial process” [3]. The decision made by the third
party is binding for every party, thus, adjudication is very close to usual
trial rather than mediation or negotiation. Usually after adjudication as well
as arbitration there is one party, who won the dispute and another one, who
lost it.
7. Early neutral evaluation is another type of ADR, which is used to provide
the parties with more information concerning their dispute. For this reason
an impartial third party or neutral is chosen to examine the peculiarities of
the case by studying written statements of both parties. A third party evaluates
the situation and announces strong and weak sides of the case. Sometimes oral
presentations are done by the disputing parties in order to feature position
of each party. Early neutral evaluation helps to avoid going to court and having
a formal trial. It is used “when the parties disagree significantly about
the value of their cases and when the top decision makers of one or more of
the parties could be better informed about the real strengths and weaknesses
of their cases” [4]. It is also a good way to avoid large expenses of
litigation.
8. Expert determination is used to resolve not very complicated disputes, when
both parties agree to choose an expert to assist. An expert (a third party)
in his turn agrees to follow certain rules, including: to “adopt procedures
suitable to the circumstances of the particular case, avoiding unnecessary delay
and expense, so as to provide an expeditious cost-effective and fair means of
determining the dispute” [8], to be impartial, fair and to keep the process
confidential, and to allow the parties both take part in the process. Before
the expert starts to work, the parties have to agree that the decision he/she
will make is binding for all parties.
9. Med-Arb is a one of the mixed process used in ADR. It is a combination of
mediation and arbitration. At first the parties take part in mediation with
the mediator trying to solve the dispute and guide the parties until they come
to a common decision. In cases when the parties are unable to reach an agreement,
mediator changes the process into arbitration and becomes an arbitrator. Parties
may agree to continue the process or may wish to select another arbitrator to
continue. The biggest advantage of med-arb is that a mediator can perform a
function of arbitrator better than another neutral, as he/she is already aware
of the peculiarities of the dispute. It is especially effective for conflicts
between employers and employees.
10. The last type of ADR to speak about is Med-Rec, which is a mixture of mediation
and recommendation. The process of resolving a dispute starts as mediation,
however, if the parties do not reach an agreement, the mediator “makes
a recommendation to the court or other decision-maker as to a recommended resolution”
[6].
III. Career outlook in the field of ADR
Speaking about career outlook in the field of ADR it is necessary to emphasize
that it is becoming widely accepted and popular to use ADR methods instead of
going to courts. Thus, this field is an excellent area, where new specialists
in law can find good jobs. This is a result of constantly growing prices for
litigation to the level when parties prefer to choose something alternative
rather than going to court, paying a huge amount of money and waiting until
the process ends for a long period of time. Nowadays, ADR is already supported
by the government, so there are vacancies not only at private companies, but
also at state courts. There is a growing need for mediation among the population
due to the growing number of divorces and small disputes between the parties.
It is a developing area of business, and as any other business it requires high
quality of judging, competence and persistence. It might be hard for a young
lawyer to find clients for mediation, as more experienced retired lawyers attract
more clients. Thus it might be sensible to gain some experience by working at
regular courts before going into ADR. However, if a person possesses certain
skills in working with people and solving disputes, if he/she knows not only
law but also human psychology and sociology, it is highly probable to become
a successful mediator or conciliator by establishing reputation, which would
attract people.
IV. The best type of ADR suitable for me
Having spoken about career outlook in the field of ADR I would like to choose
a type of ADR that would be most suitable for me. There are some types of ADR
that look very similar, thus, such types of ADR as mediation and negotiation
seem the most attractive to me. There is a growing need for mediators not only
in family or social disputes, but also in business disputes, which involve employers
and employees, business partners and companies acting as disputing parties.
The combination of mediation and arbitration also seems an interesting type
of ADR to pursue a career in. It requires more skills to have to be a mediator
and arbitrator at the same time, thus, the supply for such a kind of job will
not be too significant. So, it would be easier to receive such a job, which
would, besides, pay more money since a specialist in this area is supposed to
fulfil two functions simultaneously.
Conclusion
As it can be seen from the information provided above, there are various methods
used to resolve disputes between people. Nowadays, court proceedings are very
time-consuming and expensive, which makes the people look for something alternative.
Alternative Dispute Resolution and its methods appear to be an effective means
of resolving disputes. These methods are less expensive, confidential and not
so time-consuming; and they get much closer to the root of problems that need
to be solved. Besides, the main goal of the majority of types of ADR is to improve
relationship between the disputing parties, to help them reach an agreement.
This is what distinguishes ADR methods from usual litigation. There can be only
one winning party after a court trial, while after conciliation, mediation or
negotiation all parties can be considered as winning, because there is no conflict
between them any more.
The list of used resources
1. Mackie, Karl J. 1991. A Handbook of Dispute Resolution: ADR in Action. Routledge.
2. Maclaury, Judson. 2005. Alternative Dispute Resolution. Monthly Labor Review,
Vol. 128.
3. Spangler, Brad. 2003. Adjudication. http://www.beyondintractability.org/essay/adjudication/(accessed
September 17, 2006)
4. Alternative Dispute Resolution. http://www.opm.gov/er/adrguide/Section1-a.asp
(accessed September 17, 2006).
5. Arbitration.
http://www.mediate.ca/arbitration.php (accessed September 17, 2006).
6. ADR Options.
http://www.directionservice.org/cadre/other.cfm (accessed September 17, 2006).
7. Centre for Effective Dispute Resolution (CEDR).http://www.cedr.co.uk/index.php?location=/library/glossary.php
(accessed September 17, 2006).
8. Information about Expert Determination. http://www.iama.org.au/expert.php
(accessed September 17, 2006).
9. Ombudsmen.
http://www.adrnow.org.uk/go/SubSection_15.phpl;jsessionid=admU7qNF7qKd (accessed
September 17, 2006).
10. Reasons to Use ADR.
11. http://www.mediate.ca/reasonstouse.php (accessed September 17, 2006).
