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Alternative Dispute Resolution

• methods by which legal conflicts and disputes are resolved privately and
other than by trial or legal actions. the public courts, usually through
forms: mediation ,arbitration or conciliation.
• The rising popularity of ADR can be explained by the increasing caseload
of traditional courts.
• the perception that ADR imposes fewer costs than litigation, a preference
for confidentiality, and the desire of some parties to have greater control
over the selection of the individual or individuals who will decide their
dispute.
• Neutrals represent a broad spectrum of expertise. Many are nominated to
the panel by leaders in their industry or profession.
Types
• ADR is generally classified into at least four types: negotiation, mediation,
collaborative law, and arbitration
• Arbitration and mediation are the best known and most commonly used forms
of ADR
• Mediated arbitration, "med-arb,“a variation of the arbitration procedure in which
an impartial or neutral third party is authorized by the disputing parties to
mediate their dispute until such time as they reach an impasse
• Conciliation involves building a positive relationship between the parties to a
dispute

Some examples of cases that move to ADR include:


• business disputes, such as a claim of unfair or illegal treatment in the workplace
• consumer disputes, such as a faulty product
• family disputes, such as child custody.
Advantages of ADR
• SPEED. The only elements governing speed are the eagerness of the parties to
end the dispute and the complexity of the cases to be resolved.
• CHOICE AND EXPERTISE OF IMPARTIAL NEUTRALS: Parties who resolve their
disputes through ADR enjoy the assistance of neutrals who are already expert in
the subject matter of their disputes.
• INFORMALITY and FLEXIBILITY: conducted in a manner that is more business-like
than litigation; the parties control the process having flexibility
• PRIVACY: Arbitration, Mediation and other forms of ADR are not open to public
scrutiny like disputes settled in court; helps to preserve positive working
relationships.
• ECONOMY Time saved is money saved. Many of the costly procedures associated
with formal court processes, such as filing appeals and motions can be eliminated.
• FINALITY: arbitration awards are final, binding, and legally enforceable, subject
only to limited review by the courts; parties may also agree in advance that awards
will be advisory only.
Arbitration
• is a legal technique for the resolution of disputes outside the courts, wherein
the parties to a dispute refer it to one or more persons (the "arbitrators",
"arbiters" or "arbitral tribunal"), by whose decision (the "award") they agree
to be bound.
• It is a settlement technique in which a third party reviews the case and
imposes a decision that is legally binding for both sides.

• can be either voluntary or mandatory and can be either binding or non-


binding. Non-binding arbitration is, on the surface, similar to mediation.
• most commonly used for the resolution of commercial disputes, particularly
in the context of international commercial transactions.
• controversial in consumer and employment matters, where arbitration is not
voluntary but is instead imposed on consumers or employees through fine-
print contracts, denying individuals of their right to access the courts.
Arbitration: How it works
•  the parties agree to follow the arbitration rules of an agency,
defining how an arbitrator will be selected, how the case will
proceed, and what fees are involved.
• must sign a written contract to arbitrate that defines what the
arbitrator is to decide, and selects an arbitrator (arbitrators may
be attorneys or non-attorneys, depending on the case).
• an arbitration hearing is held, often in the arbitrator's office.
Each side presents witnesses and other evidence, and is allowed
to question the other side's witnesses.
• Then the arbitrator renders a decision. Most people find
arbitration less costly, faster and less stressful than a formal trial.
Mandatory Arbitration
• The local courthouse can tell you if arbitration
is mandatory in your case.
• the arbitrator's award is not necessarily final
and binding, because a party who is
dissatisfied has the right to request a new
hearing before the court (extra expenses)
• As a result, the arbitrator's decision is usually
accepted by both parties.
Non-Binding Arbitration
• presenting a dispute to an impartial or neutral individual (arbitrator)
or panel (arbitration panel) for issuance of an advisory or non-
binding decision
• most common quasi-judicial means for resolving disputes and has
been used for a long period of time to resolve labor/management
and commercial disputes
• appropriate for use when some or all of the following characteristics
are present in a dispute:
– 1) the parties are looking for a quick resolution to the dispute;
– 2) the parties prefer a third party decision maker, but want to ensure they
have a role in selecting the decision maker;
– (3) the parties would like more control over the decision making process
than might be possible under more formal adjudication of the dispute.
Mediation
• the intervention into a dispute or negotiation of an
acceptable, impartial and neutral third party who
has no decision-making authority
• plays the role of catalyst that enables the parties to
initiate progress toward their own resolution of
issues in dispute
• useful in highly-polarized disputes where the parties
have either been unable to initiate a productive
dialogue, or where the parties have been talking and
have reached a seemingly insurmountable impasse.
How it works: Mediators
• trained in helping parties work out a settlement
agreement or compromise
• mediators help parties to reach a settlement by
assisting with communications, obtaining relevant
information, and developing options.
• Mediators are often attorneys, although non-
attorney mediators with background in the area of
dispute (family law, business disputes, labor
relations, etc.).are commonly used for certain types
of cases.
How it works
• Mediation sessions are usually held outside the courthouse, often in
the mediator's office.
• the parties usually first meet together with the mediator informally
to explain their views of the dispute.
• Often the mediator will then meet with each party separately,
discusses the dispute with them, and explores possible ways to
resolve it.
• may suggest some substantive options as a means of encouraging
the parties to expand the range of possible resolutions under
consideration.
• Most disputes will be resolved, and often the parties will then enter
into a written settlement agreement, which is a binding contract.
Differences
• Arbitration • Mediation
– the arbitrator hears evidence and – a negotiation with the assistance of
makes a decision a neutral third party
– more like court; parties still provide – The parties do not reach a solution
testimony and give evidence, usually unless all sides agree.
less formal
– always non-binding without an
– Decisions made by an arbitrator are
"agreement settlement.“
legally binding, unless "non-binding“
–  if either party finds that they do not
– the disputing parties can mutually
want to settle after mediation has
agree to withdraw from the arbitration
before a final decision is made or if no begun, they are free to quit the
arbitration clause has been signed. process without coming to a
– a signed contract require that all
resolution
parties use arbitration to make a – parties are not generally bound by a
decision according to the stated contract except for initial
stipulations participation
Similarities
• each can be used for any legal case
• may be used instead of the traditional court system when the
disputing parties want to avoid bureaucracy
• save money
• keep the resolutions or awards of the proceedings off the
record
• both use an unbiased third party (the mediator or arbitrator);
listens to the dispute and reviews the relevant information
presented by each party
• proceedings can only move forward if both of the disputing
parties agree to participate (proceed through the courts)
Cost and Fees
• Arbitration or mediation is usually less
expensive than going to court.
• Some organizations provide services either
without charge or on a sliding scale, while other
organizations charge professional fees. i.e. ICC,
AAA
• The fees will depend on the organization used,
the type of dispute, and background of the
mediator or arbitrator.

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