Basic Overview of ADR
Workplace Dispute Resolution Section
February 2, 1999
AGENDA
9:00 - 9:10 Introduction and Overview of Session
Martha McClellan, FDIC
9:10 - 10:30 Introduction to ADR
Dorethea Taylor-Kennedy, NIH-ORS
Charlotte Kaplow, FDIC
10:30 - 10:40 Break
10:40 - 11:50 Choosing And Using an ADR Method
Panel Members:
Dorthea Taylor-Kennedy, NIH-ORS
Delores Crawford, GAO
Sheila Wolcott/Linda Washington, BEP
11:50 - 12:00 Wrap-Up
BASIC OVERVIEW OF ADR
COURSE OUTLINE
I. Definition of ADR
A. What ADR is
B. What ADR is not
C. Two basic kinds of ADR
D. Advantages of ADR
E. Primary Dispute Resolution Process --
Adjudication
BASIC OVERVIEW OF ADR
COURSE OUTLINE
II. ADR Models
A. Three Primary ADR Processes
1. Negotiation
2. Mediation
3. Arbitration
B. Eight hybrid processes
C. Spectrum of ADR procedures
BASIC OVERVIEW OF ADR
COURSE OUTLINE (Continued)
III. Choosing an ADR Method
A. Is ADR Appropriate?
1. General presumption that it is
2. Circumstances when it may not be
B. If ADR is Appropriate, How Do You Choose an ADR
Method?
1. Issues to consider
2. Using the spectrum approach
3. What type of ADR is appropriate?
4. Client objectives -- overcoming impediments
What is ADR ?
All forms of dispute resolution other than court
adjudication
“Appropriate Dispute Resolution”
What ADR is NOT . . .
Appropriate for every dispute
The solution to all disputes or conflicts
Two kinds of ADR
Interest-based
Rights-based
Advantages of ADR
Reduces cost of dispute resolution
Reduces length of time for dispute resolution
Advantages of ADR (continued)
Reduces court congestion; may reduce court
filings and dockets
Increases involvement of participants
Increases level of compliance
Disadvantages to Primary Dispute
Resolution Process (Adjudication)
Imposed by third-party decision maker
Involuntary
Binding
Disadvantages to Primary Dispute
Resolution Process (Adjudication)
Formalized and structured
Public (no confidentiality)
Three Primary Alternative Dispute
Resolution Processes
Negotiation
Mediation
Arbitration
Negotiation Characteristics
Voluntary, private
If agreement, enforceable as a contact
No third-party facilitator
Informal
No limits on presentation of arguments
Seeks mutually acceptable agreement
Mediation Characteristics
Voluntary
If agreement, enforceable as a contract
Party-selected neutral
Unbounded presentation of evidence
Seeks mutually acceptable agreement
Private
Narrow issues for trial
Two types of mediation
Rights-based mediation
(Outcome prediction)
Interests-based mediation
(Facilitated negotiation)
Arbitration Characteristics
Voluntary
If binding, only subject to limited review
Party-selected third-party decisionmaker
Less formal, procedurally
Present proofs and arguments
Sometimes principled decision
Private
Three Types of Arbitration
1. Voluntary, Binding
2. Voluntary, Non-binding
3. Compulsory, Non-binding
Eight Hybrid ADR Models
Mediation-Arbitration
Private Judging
Neutral Expert Fact-Finding
Early Neutral Evaluation
Mini-trial
Summary Jury Trial
Ombudsman
Negotiated Rule-making
ADR SPECTRUM
Facilitated Fact-Finding
ADR ADR
Negotiated ADR Advisory ADR
Preventive ADR Imposed ADR
ADR Spectrum
Preventive ADR
Negotiated ADR
Facilitated ADR
Fact-Finding ADR
Advisory ADR
Imposed ADR
Six Types of ADR
PREVEVTIVE NEGOTIATED FACILITATED
Partnering Principled Conciliation
ADR Clauses Positional Mediation
Negotiated Problem Solving
Rule-Making
Joint Problem
Solving
Six Types of ADR (Continued)
FACT FINDING ADVISORY BINDING
Neutral Neutral Binding
Expert Fact Evaluation Arbitration
Finding Private Judging
Masters, Summary Jury
Magistrates Trials
Mini-Trials
Non-Binding Arbitration
ADR May Not Be Appropriate
When There Is . . .
A need for precedent
A significant issue of Government policy
A need to establish uniform policy
An absent third party who may be adversely
affected
ADR May Not Be Appropriate
When There Is . . . (continued)
A need for a full public record
A need for continuing jurisdiction
Another disputant who is not committed to the
good faith use of ADR
Tax, judicial foreclosure, or insurance defense
issues
Principle of Subsidiarity
Resolve the matter at the lowest possible level of
organization
Start with the most interest-based procedure
possible
Designing Your Own Hybrid
Tailor the process to the problem
Use a tiered approach
Bifurcate the issues/use different methods
Identify an enforcement method for follow-up
