Alternative Dispute Resolution (ADR)
Based on a longer essay on ADR, written by Brad Spangler for the Intractable Conflict Knowledge Base Project
Updated February 2013 by Heidi Burgess
Definition:
Alternative Dispute Resolution (ADR) refers to a method of resolving a dispute that is an alternative to taking the matter to court. The concept is very broad, encompassing a wide range of dispute resolution techniques from arbitration to mediation to ombudsmanry.
Users:
Disputants ultimately are the ones who choose to employ ADR methods, though in some cases, parties are contractually bound to utilize ADR methods, and must exhaust these before being allowed to take disputes to court.
Description:
While the various kinds of ADR strategies are distinct from each other in many respects, ADR methods frequently involve the following activities:
- Cooperation - As opposed to legal battles where each side is clearly at odds, some ADR methods (e.g., mediation and consensus building) encourage parties to work together in the process of reaching consensus. (Arbitration, however, is still adversarial.)
- Personal Attention - ADR techniques are usually less formal than court proceedings, allowing parties to speak more openly and privately, to confront their opposition more directly, and voice their concerns more readily.
- Customized Agreements - Parties generally are given greater freedom to define both the process utilized and the substantive content of the conflict resolution process.
- Relationship-building - Since parties work more closely together than in litigated conflicts, many ADR processes (especially mediation and consensus-building) encourage the improvement of relationships between disputants.
Some ADR processes, however, are still adversarial. Arbitration and private judging, for example, are structured much like litigation, but disputants have more control over the process. For instance, they can choose the arbitrator or judge, they have more control over the timing, can design the details of the procedures at times, and they can keep the outcome private. However, they still engage in a process in which they are trying to prove they are right, and the other side is wrong, and the proceedings can get pretty hostile. Thus, arbitration does not have the cooperative and relationship-building benefits of mediation or consensus building.
Example:
Instead of taking the matter to court, a soon-to-be divorced couple employs a mediator for the purpose of negotiating terms of their divorce, including division of property, alimony, child custody and child visitation arrangements. By working together, the divorcing couple avoids excessive "combat," helping to forge an amicable and fair settlement.This makes future relationships with and about the children much easier for everyone involved. The agreement still must be filed at the court and signed by the judge to become official, but all of the details are worked out before that, through negotiation with the other party and the help of a mediator (or mediation team).
Application:
ADR's application is diverse and far-reaching. It is used in disputes at all levels--from interpersonal to international. Yet there are some kinds of conflicts where ADR is inappropriate and liable to bring about unfair results. For example, since ADR techniques most often involve parties working cooperatively in an effort to bring about compromise, heated moral disputes or conflicts involving serious acts of injustice (such as war crimes or domestic violence) are likely better handled in the courts, where just punishment can be more effectively administered. Also, since most ADR methods settle disputes more privately than the courts, parties that desire the dispute to receive more public attention or wish to set legal precedent may want to opt out of ADR. ADR is also less useful in situations of great power disparity. Although mediators can try to do some power equalization, in situations where one party is far more powerful, knowledgeable, or skilled at negotiating than another, the result of mediation may be less than fair. (This is less true in arbitration, where parties are more often represented by attorneys.)
Links to Related Articles:
Mediation
Arbitration
When to Arbitrate
When to Mediate
When to Litigate
