Alternative Dispute Resolution, or ADR, is generally classified into, at least, four subtypes: negotiation, mediation, and collaborative law, which are consensual processes in which the parties control the outcome; and arbitration, which is adjudicative in that a third party decides the case.
In Negotiation. participation is voluntary and there is no third party who facilitates or imposes a resolution. Negotiation can be the traditional model of hard bargaining where the interests of a group outweigh the working relationships of those concerned in the dispute.
Or it can involve the “principled” negotiation model where both interests and the working relationships are viewed as important. Often intangible goals play a part in the success of the negotiation. For more see All Things Negotiation.
Mediation involves a third party “mediator who facilitates (and may ever suggest a resolution). It is the fastest growing ADR method.
Mediation depends on the commitment of the parties to resolve their own dispute, the mediator never imposes a resolution on the parties. Unlike litigation, which focuses on the past, mediation looks to the future, which appeals to parties with an ongoing relationship.
The mediator’s job is to keep the parties talking and help them move through the difficult points of contention. Mediation’s inherent flexibility permits the parties to design and retain control of the process. An additional advantage – when the parties reach agreement it’s over, no appeals, delays or continuing expense.
If mediation arises from a court related dispute and the mediated agreement is filed with the court to end the dispute, the agreement can be enforced through the courts. For more information see All Things Mediation.
In Collaborative Law, most often,Collaborative Law Divorce, each party has an attorney who facilitates the resolution process within specified contractual terms. Again no resolution is imposed. The parties reach agreement with the support of their attorneys, specifically trained in collaborative law processes and mutually agreed upon experts. For more information see All Things Collaborative Divorce.
Arbitration is voluntary and includes a third party who acts as a private judge. It most closely resembles litigation in that the neutral third party imposes a final, binding solution. Generally the parties agree to arbitration before a dispute arises and in that agreement they mutually decide who will hear the case.
An arbitrated decision, like a mediated agreement, will generally end the dispute. Although parties can appeal the outcome, the appeal faces a tough standard of review. Final, binding arbitration has long been used in labor-management disputes, allowing the parties to keep working by providing an alternative to strikes and lockouts. For more information see All Things Arbitration.
All of these techniques often help resolve disputes faster, more economically, and with greater privacy than litigation. Many people prefer ADR approaches because they see them as more creative and focused on problem solving rather than assigning culpability. ADR has gained widespread acceptance among the general population and the legal profession in recent years both in the U.S. and the world.
For more information about Alternative Dispute Resolution, click on any of the links below.