- Details
- Category: Alternative Dispute Resolution
Types of ADR
Types of ADR list cannot be exhaustive or final as there are various dispute resolution mechanisms other than court litigation and it is still evolving.
The types of Alternative Dispute Resolution, however, can be categorized in to three categories based on the procedures we follow in each dispute resolution mechanisms. These categories are formed by considering the kind of work product resulting from ADR and how the parties participate. The categories of ADR procedures are agreement, decision and advice.
Procedure of agreement- negotiation, mediation, facilitation and mini-trials are all procedures of agreement. The work product or result from these procedures is based on the agreement of those who take part. If there is no agreement, there is no outcome. Participants in ADR process of agreement are actively involved in working together to create an outcome that is superior to any outcome that they could individually create. Specific procedures of agreement includes; negotiation, mediation, facilitation, partnering and mini-trial.
Procedure of decision –Arbitration is dominant procedure of decision. The work product or result from this procedure is based on the decision of an outsider about how the dispute is to be resolved. The outsider’s job is specifically to render that decision. Participants in this process may be collaboratively involved to design the process or to ensure its efficiency. However, when it comes to taking in the ultimate decision process, the participants’ roles are not collaborative but competitive and limited to putting forward facts and argument.
Procedure of Advice –neutral case evaluation or early neutral evaluation , non-binding arbitration , fact finding or investigation , and expert opinion are all procedures of advice; the work product or result from these procedures is intended to inform or advice the participants .
Apart from the above general classifications of ADR methods the following methods are widely known mechanisms in the spectrum. These are:
A) Self-help- Disputants may take matters in to their hands and attempt to resolve the situation themselves when they convince themselves that there is no other appropriate method to resolve it. This could involve physical confrontation or a strike.
B) Partnering -This is a conflict prevention mechanism rather than a remedial process. It is typically encountered in construction industry. In construction project the contractor, sub-contractor, architect, and other stake holders, agree that construction project will not stop during dispute resolution, regardless of the methods of dispute resolution they choose.
C) Hilo- Arbitration-Here the parties agree, before arbitration, on the minimum and maximum award. The arbitrators’ award must fall within these figures or it will be adjusted to fall within the figures. Arbitrator may or may not know the limits, before he render the award.
D) Mini-trial-It is fact finding form of ADR. It involves conducting a trial –like hearing in advance of actual trial , usually in informal setting with a private presiding officer , privately retained ‘Jurors ‘ and someone role-playing the representative for the other side.
E) Early neutral evaluation-Where an independent third party evaluates the claims made by each side and issues an opinion –either on the likely outcome or on a particular point of law.
F) Ombudsmen-Are impartial referees who adjudicate on complaints about public and private organization. Generally ombudsmen serve as a last resort when complaints cannot be or are not resolved through the internal complaints procedure of the organization complained about.
G) Arb-Med –a sequence in which the parties first submit their case to arbitration . In this approach, the arbitrator makes and seals the arbitration decision before under taking mediatory efforts or before turning the dispute over to another impartial person who will mediate. If mediation fails, the parties will be bound by the then revealed arbitration award. The purported relative strengths and weakness of their case played out in the arbitration stage of the procedure, the parties will have a more realistic understanding of what would constitute a reasonable accommodation positions. Accordingly, they should be better able to reach a mediated settlement. That is why it is called Arb-Med .
H) MED-ARB- refers to the situation in which, by agreement or by law, negotiating parties submit to the intervention of mediation which will be followed by arbitration if an agreement is not reached. If parties do not reach a negotiated resolution of their difference, the issues can be submitted to arbitration for an imposed resolution. The assumption is that this will force each side to present a reasonable, attractive last offer – one that will be more attractive to arbitrator and, for that same reason, will be more likely to gain the other side’s acceptance.
I) Negotiation - is a consensual bargaining process in which parties attempt to reach agreement on a disputed or potentially disputed matter.
J) Mediation –is a method of non-binding dispute resolution mechanism involving a neutral third party who tries to help the disputing parties reach agreeable solution.
K) Arbitration – means a process by which a tribunal other than a court decides a dispute between two or more parties under authority granted by the parties under an arbitration agreement. There might be also compulsory arbitration- without the consent of disputing parties.
When ADR is thought there are most commonly known and applicable methods in the system. In the following sub-topics major ADR methods will be discussed with their respective peculiarities and their clear cut demarcation which makes them different from one to another.