What is Alternative Dispute Resolution (ADR)?

Alternative dispute resolution (ADR) refers to a variety of processes that help parties resolve
disputes without a trial. Typical ADR processes include mediation, arbitration,
neutral evaluation, and collaborative law. These processes are generally confidential, less
formal, and less stressful than traditional court proceedings.

Definitions of ADR Processes:

Arbitration​: A neutral person called an "arbitrator" hears arguments and evidence from each
side and then decides the outcome. Arbitration is less formal than a trial and the rules of
evidence are often relaxed. In binding arbitration, parties agree to accept the arbitrator’s
decision as final, and there is generally no right to appeal. In nonbinding arbitration, the parties
may request a trial if they do not accept the arbitrator’s decision.

Case Conferencing​: in case conferencing, a judge or the judge’s representative meets with the
parties and their attorneys to try to settle some or all of the issues in dispute before going to
trial. Parties’ participation is limited, and the focus is on narrowing the issues in dispute.

Collaborative Family Law:​ Collaborative Family Law gives divorcing couples a way to end their
marriage respectfully, without going to court, while offering them the support, guidance and
protection of their own, specially-trained lawyers. If either spouse decides to go to court, both
spouses must hire new lawyers. This motivates everyone involved to continue working toward a
mutually agreeable resolution. Collaborative Family Law may also involve other professionals.
Collaborative Family Law may not be appropriate for couples with a history or fear of domestic
violence, or where one spouse cannot locate the other. Learn more about Collaborative Family
Law.

Mediation​: a neutral person called a "mediator" helps the parties try to reach a mutually
acceptable resolution of the dispute. The mediator does not decide the case, but helps the
parties communicate so they can try to settle the dispute themselves. Mediation may be
particularly useful when family members, neighbors, or business partners have a dispute.
Mediation may be inappropriate if a party has a significant advantage in power or control over
the other.

Neutral Evaluation​: a neutral person with subject-matter expertise hears abbreviated

arguments, reviews the strengths and weaknesses of each side’s case, and offers an evaluation
of likely court outcomes in an effort to promote settlement. The neutral evaluator may also
provide case planning guidance and settlement assistance with the parties' consent.
The advantages of ADR are:

Cheapness – The relative cheapness of ADR in comparison with the Courts is advantageous.
Costs normally associated with court proceedings such as court fees, delays and having to
follow complex court processes are not incurred with ADR.

Speed – The use of ADR is much quicker. In particular one of the quickest and cheapest
methods of ADR is negotiation and this is because parties get round the negotiation table
themselves to solve the dispute without the need for representatives.

Control – With ADR the parties retain control over the dispute and the way it is resolved rather
than handing over control to the Courts. There is a saying with litigation in the courts to the
effect that once started no matter how sure you are of the merits of your own case, there is no
knowing when it will end.

Adversarial – Court proceedings are adversarial and about winning not losing, whereas ADR is
about finding possible solutions to disputes. As the proceedings are in private it can be a
damage limitation exercise and this can be important if the parties expect to do business with
each other in the future. ADR can avoid bad feeling between the parties.

Privacy – Court proceedings are conducted in public. The press is admitted and it is possible for
the case to be reported in the local or national newspapers. A clear advantage of ADR is that
the methods used are private and again this may be an important factor if commercial
reputations are at risk.

Expert Arbitrators – With court proceedings the Judge may be an expert in the area of law
involved but is not likely to be an expert in building or civil engineering or whatever the subject
of the dispute is about. The judge relies upon facts being presented to him or her following
detailed and expensive trial preparation. Expert witnesses may well be necessary and this will
inevitably contribute to the length of the trial and the overall cost. When expert arbitrators are
used they do not rely upon expert evidence in the same way, this means that the proceedings
are usually quicker and cheaper.

There are a number of disadvantages associated with ADR these are:

Willingness to compromise – The use of ADR is dependant upon the willingness of individuals
to compromise and to this extent it is arguable that the parties are more likely to settle for less
whereas once they have embarked upon court proceedings their expectations may be higher. It
could be that one of the parties does not accept there is a problem and is not prepared to
compromise.
Uncertainty – Although ADR is generally quicker and cheaper this is not always the case. Even
negotiations can drag on and become lengthy and expensive with no certainty of a resolution of
the dispute. At least with court proceedings there is usually certainty.

Complexity and Expense – Generally ADR is cheaper than using court proceedings but some
formal arbitration hearings can still be complex and expensive depending on the subject matter
of the dispute. There are professional and trained arbitrators and these can be expensive.

Making a statement – Because ADR is confidential they are unsuitable if one party wants to
make a point and put out a clear warning or send out a message about the proceedings and
their outcome.

Immediacy - ADR is not suitable where one party wants the other to stop instantly. This could be
in the case of one party wanting to prevent another from selling goods which are of a similar
design to something they are selling or in the case of harassment.

Time limits – It is worth remembering that if there is a time limit involved in a legal claim it may
not be appropriate to use ADR. It does not put a stop to any legal time limit and may mean that,
if unresolved, the time to make a legal claim has passed.

Objective of ADR Referral Guidelines

These guidelines aim to:

1. Give effect to the Tribunal’s legislative objectives through the utilisation of a range of ADR
processes to respond to and meet the differing needs of the parties in each application.

2. Ensure consistency in ADR referrals made by Tribunal members and officers.

3. Educate parties in the expectations and procedures of the Tribunal in ADR referral.