Alternative Dispute Resolution
is a collection of processes used to resolve conflict or disputes informally and confidentially. ADR provides alternatives to traditional processes, such as grievances and complaints, but does not displace them.
ADR encourages creativity and practical solutions and can be faster, cheaper, less formal and less confrontational than traditional processes.
The ADR process can improve communications, provide long-lasting solutions, help avoid publicity and give parties control of the outcome.
Types of ADR
Mediation is a nonbinding process in which parties to a dispute work with an impartial third party ("neutral" or "mediator") who helps them to reach a settlement. The mediator does not decide the case but rather facilitates a consensual agreement among the parties to the dispute. Except under some court-mandated programs, mediation is a consensual effort: both parties must agree to it. It often is employed after it becomes apparent that direct negotiation between adversaries will not resolve the dispute efficiently.
Perhaps the most attractive aspect of mediation is that it can be tailored to suit the needs of each individual dispute. The mediator can play a low-key and conciliatory role, or take on a more proactive role by making suggestions and probing for convergent interests. The parties can also decide to convert the mediation into an arbitration proceeding, granting the mediator the power to issue a binding decision.
Arbitration is a process in which a dispute is referred to one or more impartial persons for a final, binding decision. The parties to this "quasi-litigation" procedure may contractually limit the issues subject to the arbitration as well as the procedural aspects of the process.
Mediation-Arbitration ("med-arb") is a combination process in which an impartial person is first employed as a mediator, then, if the mediation fails, as an arbitrator. Other combinations of binding and nonbinding processes are possible as well.
Why Use Mediation?
As those managing disputes know well, making an informed decision about whether to litigate a case or propose an alternative process such as mediation, arbitration or other ADR variation, can be a complex exercise. Judgment, experience, timing and the known facts about the dispute all come into play.
The following checklist will help decision-makers determine whether litigation or mediation is more appropriate for resolving a particular dispute. Based on the resources of the CPR Institute for Dispute Resolution, the table is not meant to be applied mechanically by merely adding up the pros and cons, but rather is meant to guide reasoned decision-making. A full discussion of the alternatives to litigation as a means of resolving such disputes is found in Trademark & Unfair Competition Disputes, A Practitioner's Guide.
Choosing Mediation Checklist
Mock Mediation Video
Resolution Through Mediation: Solving a Complex International Business Problem
Discover the value of resolving trademark conflicts through mediation with this 40-minute informative video demonstrating a mock mediation session.
Dealing with a business dispute between a Russian distillery and an American manufacturer and distributor of alcoholic products, the video reviews how two parties are able to use a mediator to settle their differences. Allegations of unfair trade practices, trademark and trade dress infringements and bad faith pirating dominate the dispute.
Resolution through Mediation Study Guide
American Arbitration Association
American Bar Association Dispute Resolution Section
Association of Conflict Resolution
Cornell/PERC Institute of Conflict Resolution
International Chamber of Commerce - Court of Arbitration
International Institute for Conflict Prevention & Resolution
Mediation Information & Resource Center
Ohio State Journal on Dispute Resolution
Program on Negotiation at Harvard Law School
U.S. Department of Justice Office of Dispute Resolution
World Intellectual Property Organization Arbitration and Mediation Center
Domain Name Dispute Resolution
Internet Corporation for Assigned Names and Numbers (ICANN)
ICANN-Accredited Domain Name UDRP Providers
Asian Domain Name Dispute Resolution Centre
The Czech Arbitration Court Arbitration Center for Internet Disputes
National Arbitration Forum (NAF)
WIPO Domain Name Dispute Resolution Service