Disadvantages Of ADR

ADR May Be Biased Because Of Extreme Power Imbalance

Generally, ADR aims to achieve fair settlements with no hint of biasness in sight.
However, fairness may be proven to be difficult to obtain when there is a possibility that
differences in powers may exist between the parties in dispute. This imbalance of power
may cause the ADR process to be held unfairly leading to an unjust outcome. For example,
mediation between an individual with a large company may put the individual at a
disadvantage because of the influence and the size as well as the resources that the
involved company possesses.1 Furthermore, according to some commentators, negotiators
can become uncooperative and have manipulative as well as exploitative behaviour when
expose to imbalance of power.2

Therefore, this gives an opening for people with a higher status to take advantage
over the fact that ADR cannot sufficiently provide protection over the weaker parties. This
shows that the processes of ADR may not be as fair as court proceedings. This is because,
ADR is lacking of procedural rules and other laws that can be used to govern its proceeding
in order to ensure fairness of the process and the outcome being upheld. For instance, ADR
does not have a third party decision maker that will ensure that the agreement made
between the parties is fair and just and in a situation whereby dissatisfaction arises between
one of the parties regarding the process of ADR, judicial review is not made available.
Besides, in order to reach a settlement that is in favour of the more powerful party, the
weaker party may be forced to accept the settlement recommended by the former party and
may be pressured to make the agreement appears as consensual when in actuality it is
based on coercion.3 The inability of the latter party to afford costly court procedures is also
one of the reasons why they have no choice but to accept whatever settlement given
although it is unsatisfactory. This clearly shows that one party could become vulnerable to
the exploitative behaviour of the other when there is a significant amount of power imbalance
between the parties.

Power imbalance also poses as a problem in ADR when one of the parties involved
is the government. According to Michael Coyle in his article called “Defending The Weak

1
Doyle, M. (2012). Why Use ADR? Pros & Cons - ASA Guide. London: Advice Services Alliance

2
Coyle, M. (1998). Defending The Weak And Fighting Unfairness: Can Mediators Respond To The Challenge? Osgoode Hall
Law Journal, 36(4), 626-659.
3
Center For Democracy And Governance. (1998). Alternative Dispute Resolution Practitioners' Guide. Washington Technical
Publication Series
And Fighting Unfairness: Can Mediators Respond To The Challenge?”, in Canada, the
Aboriginal communities have a hard time in obtaining fair outcomes from the process of ADR
when they are fighting against the government as the government enjoys power imbalance.
This is due to the reason that the government enjoys a much greater financial, legal, and
technical resources than the aborigines and that the alternatives to negotiation available to
the claimant community is usually less favourable than the alternatives available for the
Crown.

Conclusion

In conclusion, ADR has the ability to benefit the public and enhance relationships
provided that it is not being misused. In the event that ADR is properly used, mutual
satisfaction, fair resolution as well as just result will be enjoyed by both of the parties.
Although ADR has its own drawbacks, it is undeniable that it still serves its purpose to help
settle the disputes between the people in a much easier, speedier and cheaper manner.
List of Reference
Coyle, M. (1998). Defending The Weak And Fighting Unfairness: Can Mediators Respond
To The Challenge? Osgoode Hall Law Journal, 36(4), 626-659.

Doyle, M. (2012). Why Use ADR? Pros & Cons - ASA Guide. London: Advice Services
Alliance

Center For Democracy And Governance. (1998). Alternative Dispute Resolution

Practitioners' Guide. Washington Technical Publication Series