Cecily Zamora
Alternative Dispute Resolution (ADR) is a method of resolving disputes outside of official judicial mechanisms. It includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration. While ADR is generally confidential, voluntary, and free, it may be mandatory in some states. The main advantages of ADR are speed, confidentiality, and flexibility. There are binding and non-binding ADR processes, with the majority of processes involving a third party acting as a facilitator rather than a decision-maker. While ADR does not have to follow common law, there are relevant laws and provisions that govern its use.
| Characteristics | Values |
|---|---|
| Definition | Alternative dispute resolution (ADR) |
| Types | Negotiation, mediation, collaborative law, arbitration, conciliation, neutral evaluation, mini-trial, structured negotiation, One Couple One Lawyer |
| Advantages | Rapidity, confidentiality, flexibility, informality, low risk, time and cost savings, tailored and favourable settlements |
| Disadvantages | May require more time, may not always lead to a complete or partial agreement |
| Request Process | Requests should be made early in a formal proceeding, but can be requested at any time if ADR will assist in promptly resolving the dispute |
| Request Methods | Online form, phone, email |
| Cost | Free |
| Confidentiality | Confidential, unless parties agree to negotiate in public |
| Location | Remote, using virtual meeting platforms or telephone |
| Examples | CPUC, US Postal Service, Northern District of California, New York |
| Laws and Provisions | Title 9 of the U.S. Code, Uniform Arbitration Act, Civil Procedure Code (India), Small Claims and Minor Offences Courts Ordinance (Pakistan), Local Government Ordinance (Pakistan), Family Courts Act (Pakistan), Code of Criminal Procedure (India), Arbitration Act (India), Constitution of Pakistan |
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What You'll Learn
Mediation
Alternative dispute resolution (ADR) is a way to resolve disputes outside of official judicial mechanisms. It includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration. While ADR does not have to follow common law, there are laws and provisions in place that deal with ADR, such as the Civil Procedure Code, the Local Government Ordinance, the Family Courts Act, and the Code of Criminal Procedure.
There are different types of mediation, such as structured transformative mediation, traditional people's mediation, and lawyer-supported mediation. Structured transformative mediation involves separating the parties after or before a joint session, which has been found to improve the success rate of mediation. Traditional people's mediation involves the parties remaining in contact for most or all of the mediation sessions. Lawyer-supported mediation is a non-adversarial method used to resolve family issues during divorce or separation.
In some countries, ADR is synonymous with mediation. For example, in India, arbitration or mediation has been used as an alternative to dispute resolution by municipal courts since ancient times. Mediation can be a useful way to avoid the costs and delays associated with litigation and can help parties reach a fair settlement.
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Arbitration
In the United States, arbitration is supported by federal law. Title 9 of the U.S. Code, based on Congress's plenary power over interstate commerce, establishes the terms for national arbitration, which prevail over state law. Additionally, forty-nine states have adopted the 1956 version of the Uniform Arbitration Act, with twelve states adopting the revised version in 2000. The New York Convention, drafted in 1958, aids in the enforcement of foreign arbitral awards in domestic courts.
While arbitration is a well-known form of ADR, it is not always considered as such. In some contexts, such as the settlement of investment disputes, arbitration is the principal means of settling disputes. Arbitration can be held ad hoc or with administrative support from institutional providers like the American Arbitration Association (AAA) or JAMS in the case of national arbitration.
Structured negotiation is another form of ADR that differs from traditional options as it does not rely on a third-party mediator and is not initiated by a legal complaint. It is often implemented in cases where a party or parties seek injunctive relief and has been used to arrange agreements arising from Americans with Disabilities Act (ADA) legal complaints.
ADR offers several advantages over traditional litigation, including rapidity, confidentiality, flexibility, and cost savings. It allows for a more tailored and favourable resolution for each party and can help avoid lengthy and expensive court proceedings. However, ADR may also require more time and effort from the parties, which could be lost if a complete or partial agreement is not reached.
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Neutral evaluation
In some cases, neutral evaluation may be court-connected, while in others, it may be undertaken in a private setting through voluntary arrangements between the parties. The process typically involves four major segments: case presentations, focusing, assessment/valuation, and settlement exploration.
While neutral evaluation offers many benefits, it is important to consider the potential drawbacks. For example, if critical information is missing or witnesses have not been interviewed, a neutral evaluation may be inaccurate and potentially harmful to the case. Additionally, if the case heavily relies on witness credibility or the possibility of changing testimonies, the candour required for the process to work may be challenging to achieve.
Overall, neutral evaluation is a valuable ADR technique that can provide expert guidance, encourage early settlement, and reduce the need for prolonged litigation. It is a flexible and cost-effective process that can be adapted to suit the specific needs of the disputing parties.
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Confidentiality
While there is widespread agreement about the importance of confidentiality in ADR, there is no single definition of the concept. Most commonly, confidentiality of process refers to the non-disclosure of information, communication, and documents exchanged during an ADR process. However, inconsistencies in interpretation and application occur between jurisdictions and between forms of ADR. For example, in some instances, confidentiality is considered to be protection from disclosure, not from use.
In some jurisdictions, ADR practitioners are prohibited from disclosing information provided in the ADR process. For example, in the Farm Debt Mediation Act 1994 (NSW), confidentiality is limited to protecting communications. In contrast, the Commercial Arbitration Act 2010 (NSW) provides protection only to 'confidential information' rather than the entirety of the proceedings or exchanged information.
Some jurisdictions identify circumstances under which confidentiality may or must be overridden. For instance, in the family law context, an FDR practitioner must disclose a communication if they reasonably believe it is necessary to comply with the law, such as reporting child abuse. Similarly, the Family Law Act 1975 outlines several exceptions where disclosure may be permitted, such as protecting a child from harm or preventing a serious threat to a person's life or health.
All jurisdictions allow for confidentiality to be waived by the consent of the parties involved. However, it is unclear whether the ADR practitioner's consent is also required in these situations. Additionally, there may be exceptions for research and evaluation purposes or when referring to another ADR process.
The Administrative Dispute Resolution Act (ADRA) in the United States provides confidentiality protection for oral or written communications made in a covered dispute resolution proceeding. This protection is based on the recognition that a careful balance must be struck between openness and confidentiality to facilitate sensitive negotiations and yield agreements. However, it is important to note that ADRA's confidentiality section does not protect the agreement to enter into a dispute resolution proceeding or the final agreement or award reached.
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Litigation
ADR is a cost-effective way to keep corporations out of court and has been adopted by many large companies. It is a sensible alternative to litigation, which can be time-consuming and expensive. Negotiation is the most common form of ADR, as it allows the parties involved to control the process and the solution. Other forms of ADR, such as mediation, are also informal alternatives to litigation, as they do not involve binding decisions.
In the context of litigation and ADR, it is important to distinguish between the two practices and understand their respective advantages and disadvantages. Litigation is a more formal and traditional legal process that involves court proceedings and binding decisions. On the other hand, ADR offers flexibility and allows for creative solutions that may be more satisfying to both parties.
Students interested in a career in litigation or ADR should gain a strong foundation in litigation practices and ADR methods. They should also develop their writing and advocacy skills, as these are essential for effective practice. Additionally, gaining real-world experience through internships and volunteer work is invaluable for future litigators and ADR practitioners.
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Frequently asked questions
Alternative Dispute Resolution (ADR) includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration.
ADR is generally faster, more confidential, and more flexible than litigation. It is also free and voluntary, so there is little downside to trying it.
No, ADR is divided between methods of resolving disputes outside of official judicial mechanisms and informal methods attached to official judicial mechanisms.
