ALTERNATIVE DISPUTE RESOLUTION (ADR)
“ ADR methods are ways of resolving a LEGAL DISPUTE by methods OTHER than going to
court (litigation) “
• What is litigation?
o Litigation: the process of taking legal action in the court system
▪ is expensive (lawyer’s fees and court fees)
▪ is a lengthy process
▪ involves an inflexible procedure
▪ the courts are also very busy so there are time delays in obtaining a trial
date
• What are the 4 Alternative Dispute Resolution methods?
o If two parties have a legal dispute then they can choose to have the dispute
resolved by any of the following Alternative Dispute Resolution methods:
▪ Negotiation
▪ Conciliation
▪ Mediation
▪ Arbitration
• Negotiation
o the most informal method of ADR
o the parties agree to come together to discuss the problem and to reach a solution
o the usually parties meet face-to-face
o there is no third party assisting them in resolving the dispute
o the parties must resolve the dispute and reach an agreement or solution
themselves
o The parties may each appoint a lawyer to represent them in the negotiation
process
• Negotiation
Advantages:
o Fast: the dispute can be resolved quickly by negotiation
o Cheap: negotiation is cheap
o flexible: negotiation involve very few rules
o suitable for disputes that are not complicated
Disadvantages:
o not suitable if parties do not agree to negotiation
o or if the parties do not wish to co-operate
o or if dispute is very complicated
• Conciliation
o With conciliation, the parties to the dispute appoint a third person called a
conciliator
o
▪ The conciliator:
▪ is a neutral third party ie: someone who is not involved in the
dispute and has no interest in the outcome
▪ assists the parties in reaching a solution to the dispute
▪ helps the parties to communicate
o In the conciliation process, the parties may be face to face OR the conciliator may
put the parties in different rooms and carry information back and forth between
them
• The conciliator does not make a decision
-The parties to the dispute must reach their own solution to the dispute
• Mediation
o The mediation process is almost identical to the conciliation process
o the parties to the dispute appoint a neutral third person called a mediator to assist
them in reaching a solution
o The mediator acts like a conciliator, with the difference that the mediator will
make suggestions and propose solutions to the parties
o conciliation and mediation are the same except that with mediation the mediator
will make suggestions and propose solutions to the parties
Conciliation + Mediation
o Advantages:
▪ compared to litigation and arbitration, mediation and conciliation are both:
▪ flexible
▪ fast
▪ confidential
▪ cheap
▪ good way of resolving a dispute if parties want to resolve the dispute, but
have difficulty communicating with each other
▪ the parties can choose the conciliator/mediator
o Disadvantages:
▪ not suitable if parties:
▪ do not agree to conciliation or mediation
▪ do not wish to co-operate
▪ not suitable if the dispute is very complicated
• Arbitration
o this is the most formal method of alternative dispute resolution
o both parties must agree in writing that they will have their dispute resolved by
way of arbitration
o a neutral third party called an arbitrator is appointed to hear the dispute
o the arbitrator is usually a trained lawyer who is an expert in the area of the dispute
o an arbitrator is similar to a judge in a court
o An arbitrator makes an arbitration award (a decision similar to a judgment in
court)
the arbitration session is similar to a court hearing:
• both parties appear before the arbitrator on an agreed date
• both parties will give oral evidence (tell their side of the story) to the arbitrator
AT THE END:
o at the end of the arbitration session, the arbitrator makes a decision on the dispute
(called an “arbitration award”)
o the arbitration award is final and binding on the parties and cannot be appealed
Arbitration
Advantages:
o arbitration session is confidential
o the parties can choose an arbitrator who is an expert in the area of the dispute
o quicker than litigation
o cheaper than litigation
o arbitration award is final and binding on the parties
Disadvantages:
o takes longer than negotiation, conciliation & mediation
o more expensive than negotiation, conciliation & mediation
o not as flexible as negotiation, conciliation & mediation
