Disputes are inevitable in all relationships. All of us face a certain kind of dispute every now and then. Some manage to talk it off, while others resort to pronounced methods of resolution. Thus, it is vital that we possess a substantial amount of knowledge apropos of different methods and processes that we could apply in resolving disputes.
Definition of Alternative Dispute Resolution
Alternative Dispute Resolution is a collective term for the processes that do not need litigation. These processes are mediation, arbitration, and expert determination. Court action often takes a lot of time, so looking for a resolution using the Alternative Dispute Resolution might be more efficient. Furthermore, in an Alternative Dispute Resolution process, a neutral and independent third party helps in resolving the dispute.
Disputes are identified and managed early and effectively in dispute management. Dispute management has some key strategies, and they are as follows:
- resolving disputes on time
- evaluating disputes to decide on the proper response
- responding to disputes swiftly and sensitively
Types of Alternative Dispute Resolution
ADR has three main types; the types are facilitative, administrative, and determinative. Each of these types is distinct from each other. Each type has its particular, notable features and varied examples.
In the Facilitative Process, a dispute resolution practitioner, or the neutral third party, provides assistance to the parties, identifies all facets of the issues, then gives considerable options and alternatives to reach an agreement. Usually, parties can voluntarily undertake the steps, and the third party cannot force a resolution to the complaining parties.
An example of the Facilitative Process is Mediation. Mediation is where a neutral third party, known as the mediator, facilitates parties in a negotiation to arrive at an agreement acceptable by the involved parties. The mediator's role is strictly to assist and guide the parties to reach an agreement.
Moreover, mediation is attractive to parties that:
- place importance on the preservation or improvement of their relationship
- seek to have control over the settlement process
- place high regard on confidentiality
- want to attain a quick settlement without damaging their reputation.
If one or more of the aforementioned qualities are applicable to you, then mediation might be a good option. There are a number of providers who could assist you in the use of mediation; make sure to contact them before proceeding.
In this process, a dispute resolution practitioner evaluates all facets of the dispute and provides advice regarding the issue, then draws possible or favorable outcomes and how these outcomes could be achieved. The common examples of advisory processes include conciliation, case appraisal, and neutral evaluation.
In Conciliation, the involved parties utilize a conciliator. The conciliator meets with parties separately and together with the aim of resolving their differences. The resolution is done by lowering tensions, improving communication, and encouraging the parties to look for possible solutions and favorable outcomes.
Furthermore, in Case Appraisal, the case appraiser evaluates the merits of the parties' case and makes a decision regarding the dispute. In this process, the appraiser meets with both parties to decide on how the appraisal would move further, asks parties to submit witness statements and submissions before the hearing, read the documents sent by the parties, puts the decision in writing, and files a certificate with the registrar with a copy of the decision.
Lastly, Neutral Evaluation is a process where a neutral third party listens to the presentation of the positions of the disputants, then responds with his or her evaluation of the case. The process begins with the selection of a trusted neutral evaluator and then escalates to the submission of the parties' written statements and other relevant documents. Then the evaluator prepares a written evaluation of his or her opinions on the parties' positions and may include a "settlement range".
The third and last type of Alternative Dispute Resolution is the Determinative process. This process is where a dispute resolution practitioner gives his or her evaluation of the dispute and then comes up with a determination. Among all the other types, this mostly reflects the formal legal process and could possibly include hearing of formal evidence and submission of formal statements from the parties. The most common examples are Arbitration and Expert Determination.
Arbitration is the procedure where the disputants submit their disputes to one or more arbitrators who make a binding decision on the dispute. Parties who prefer a private resolution process choose arbitration instead of going to court. However, some disputes cannot be resolved through arbitration. Thus, before proceeding, seek advice from a trusted person who is knowledgeable regarding this procedure.
Another example of a Determinative process is Expert Determination. This pertains to a consensual procedure where parties submit a specific matter or issue to one or more experts who have the capability to make a determination regarding the matter. The determination is binding unless agreed otherwise by the parties.
The other notable features of this procedure are:
- the parties are able to choose the experts with relevant expertise
- expert determination is neutral and flexible
- It is a confidential procedure.
Disputes are inherently frustrating. They take up too much of our time, money, and energy, particularly when they are being raised to the Court which always require an experienced lawyer or law firm. Fortunately, we have Alternative Dispute Resolution wherein we could choose a particular process that addresses our issues and needs in a much more efficient way.