What is Alternative Dispute Resolution (ADR)?
There are probably as many ADR approaches as there are different types of conflict. Most of the time the process is fluid and the best process may develop with the file. The following is an overview of the ten main types of alternative dispute resolution.
Negotiation
Negotiation is the most recognized method of resolving problems. It is also the most common method of resolving legal disputes without going to court, and the foundation of mediation and collaborative law.
Most people have good negotiation skills and use them in their everyday life. However, some conflicts are not easily settled, and the parties require the assistance of professionals to help them identify their interests and figure out how best to meet those interests.
Facilitation
A Facilitator assists in enhancing an existing dispute resolution process or structure. The Facilitator has no decision-making authority. Instead, the Facilitator assists the parties in identifying issues and addressing those issues. This is often seen in Union/Employer negotiations where a grievance process is failing. More recently, this is has been seen in contract disputes were there are arbitration requirements as a method of settling before formal arbitration.
Mediation
Mediation is a process where an impartial professional assists the disputing parties to negotiate a reasonable Agreement. Mediation is often faster, cheaper and more effective than the court process. It is also confidential.
Most mediations require a series of meetings between the parties, where the mediator plays an active role in assisting the parties to reach settlement. There are many different forms of mediation with varying degrees of involvement by the Mediator.
Lawyers are an important part of the mediation process, but do not necessarily need to attend the mediation. That is up to the parties to decide. The lawyer’s role is to ensure that mediation is appropriate, and to give legal advice on the fairness of any Agreement reached before it is signed.
Conciliation
Conciliation is a form of mediation where the Mediator meets with the individual parties privately, and then “shuttles” between the parties. This is very common where there is a high degree of conflict- as in family law, or strong ideological differences such as Union/Employer disputes.
Collaborative Law
Collaborative Law is ideal for complicated or mid-high conflict cases. In this process, the parties agree not to go to court. Instead, the lawyers work together to find solutions.
The conflict is divided into its constituent parts:
- Divorce Coaches help the parties work through their emotional turmoil and develop new skills to assist in conflict resolution;
- Child Specialists address the children’s needs; and
- Financial Specialists help to assess the family’s resources and map out a future financial plan.
The lawyers share their expertise with the other professionals. Since the lawyers are generally the most expensive professionals in the team, focusing their role normally adds up to serious savings.
Mediation often plays an important role in Collaborative Law process.
While Collaborative Law is normally practiced in the family law settling, it has recently expanded into estate, elder, and employment law.
Case Evaluation
Case evaluators are often former judges or adjudicators who are used to give an opinion of the strengths and weaknesses of a case. Often, a lawyer will use a Case Evaluator to confirm that their approach to the case and assessment of the case are consistent with what a court would likely decided.
Recently, Case Evaluators have been used to end roadblocks in negotiation or mediation matters. The parties ask the Case Evaluator for an opinion on the merits of a discreet area of a dispute.
Arbitration
Arbitration is like hiring a private judge to decide the case. The Arbitrator reviews the evidence and arguments of each party in order to reach a decision that is binding for both parties. The process is similar to a court process, but is often quicker and less cumbersome. Most importantly, it is confidential and takes place in private, rather than open court.
Lawyers are an important part of the arbitration process. In order to avoid appearance of bias, an Arbitrator normally does not meet with the parties beforehand. Typically, each party has their own lawyer, and together they choose a suitable Arbitrator. Either party can decide to represent themselves at the hearing, but in order to maintain fairness; they do not receive any extra assistance from the Arbitrator.
Fact Finding
Fact Finding is a form of conflict analysis where the nature and the extent of the conflict are determined. This traditionally happens in institutional or employment settlings. However, in recent years this has been seen in personal injury and contract disputes.
The Fact Finder interviews the participants and determines what the relevant facts are, based upon each participants’ perception. A Fact Finders’ report is normally impartial and does not evaluate the facts or make recommendations.
Dispute Identification
Dispute Identification is similar to Fact Finding. However, the reporter will often evaluate the parties’ positions and make recommendations. They are not impartial observers. The role of the reporter is to identify the nature of the dispute and make recommendations regarding resolution.
Ombuds Office/Person
Ombuds are a third party selected or employed institution. The most common examples are at universities, hospitals, large corporations or government agencies. Their role is to internalize dispute relating to complaints by employees, clients or constituents. They act as Fact Finders and can often attempt to mediate disputes. They are not impartial and have no power to make final determinations.
Michael Butterfield
Collaborative Family Lawyer
Certified Mediator & Arbitrator
November 14, 2013
MB/ec