At the onset of any potential legal dispute, a potential litigant looks to have his or her day in court. This usually means the hiring of attorneys, the filing of documents, the calling of witnesses to give evidence, the preparing and drafting of documents and appearing in front of a judge. These steps from a potential litigant sitting in front of an attorney advising them of their legal dispute to the rendering of a decision by a judge can be a costly and time-consuming experience. Additionally, some potential litigants turn to some alternative recourse because to them the court system is slow, inefficient and ultimately is the one in control of the dispute.
Alternative dispute resolution, also known by its acronym ADR, is an umbrella term used for the varying methods of resolving disputes in a manner outside of the traditional court process. ADR often comprises of a range of specialist disciplines which can include a combination of two similar disciplines or may be created for a specific purpose. These specialist disciplines can be split between two groups of ADR. The first group consists of methods where the outcome is non-determinative or non-binding with the most common ones being mediation, conciliation, judicial appraisal, early neutral evaluation, negotiation and mini-trial. The second group comprises methods where the parties choose to be bound by the outcome and include such methods as arbitration, statutory adjudication, expert determination and med-arb.
Non-Determinative Methods
Mediation is in essence a highly refined version of negotiation, utilising without prejudice a conversation with the mediator as the problem solver. Mediators use techniques which expose possible obstacles and impediments to settlement, identify shared interests between the parties and create many options for possible settlement. One of the many advantages of mediation and using a mediator is the ease in which it can be set up for the benefit of the parties; however, the success of any mediation lies with parties genuinely wishing to settle their dispute. The parties can also choose the manner in which the mediation is to take place, such as joint sessions including the parties and the mediator, private sessions with one party and the mediator and a succession of joint sessions aimed to reach a settlement.
Another form of ADR is conciliation, which is similar to mediation and is often used interchangeably. Conciliation is used in family matters and work-related disputes where the preservation of the relationship remains paramount; however, parties may have already begun litigation when conciliation is sought. The object of conciliation is to try to encourage parties to agree upon terms where both will be content. This method may not always require a neutral third party, and often the end result may not end in a settlement.
Judicial appraisal provides for parties to appoint a judge to receive written representations and make an appraisal as to the likely result if the dispute goes to court. The parties must agree the form and extent of submissions and can also agree if they wish for the decision to be binding. Similar to judicial appraisal is early neutral evaluation, a method whereby a lawyer provides a view as to the likely trial outcome based on the merits of each side’s case and can advise on if and how the dispute should be resolved.
Negotiation does not require the intervention of a third party as its focus is on problem solving. The aim is for parties to walk away with a win/win situation, and often such negotiation takes place before the commencement of proceedings. The mini-trial method consists of a three-person tribunal with a neutral chairperson who sits with representatives from each side, hears the details and discusses what appears to be the most appropriate settlement. This method is usually most suited to large, complex disputes between large corporations where the views on each side differ greatly as to facts and law.
Determinative Methods
Arbitration is a private process where fairness, speed and cost-effectiveness are paramount to the resolution of the dispute. It is a legally enforceable procedure which allows parties to agree on how the dispute should be resolved, and the parties must agree in writing to refer their dispute to arbitration. Parties are also allowed to select their arbitrator or a panel of arbitrators who render an arbitral or arbitration award which is equivalent to a court judgment. The process is similar to the trial process, as witnesses can give evidence and parties can provide arguments in support of their respective positions.
Expert determination is a method limited to disputes of a technical nature where only one technical matter may need to be determined. Med-arb is a combination of mediation and arbitration whereby the parties agree to mediate at the onset, but in the event that mediation is unsuccessful in reaching a settlement agreement, they agree to be bound to the arbitration process and the impending determination of the arbitrator(s). Statutory adjudication is a method reserved for construction disputes which frequently produces a quicker determination than arbitration.
As indicated above, litigants may find themselves exploring ADR in place of traditional litigation because of what they view as inadequacies of the court system. However, there are some benefits to ADR. For example, parties have the ability to control when the process takes place, their agreement to participate is voluntary and un-coerced, and rules and regulations are agreed upon from the outset, ensuring peaceful resolution of conflicts and giving each party the peace of mind that the process remains confidential.