Alternative dispute resolution (ADR; known in some countries, such as India, as external dispute resolution) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. It is a collective term for the ways that parties can settle disputes, with (or without) the help of a third party.
Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried (indeed the European Mediation Directive (2008) expressly contemplates so-called "compulsory" mediation; this means that attendance is compulsory, not that settlement must be reached through mediation). Additionally, parties to merger and acquisition transactions are increasingly turning to ADR to resolve post-acquisition disputes.
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. Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of this (ADR) use of mediation to settle disputes.
Alternative dispute resolution (ADR) is generally classified into at least four types: negotiation, mediation, collaborative law, and arbitration. (Sometimes a fifth type, conciliation, is included as well, but for present purposes it can be regarded as a form of mediation. See conciliation for further details.) ADR can be used alongside existing legal systems such as sharia courts within common law jurisdictions such as the UK.
ADR traditions vary somewhat by country and culture. There are significant common elements which justify a main topic, and each country or region's difference should be delegated to sub-pages.
ADR is of two historic types. First, methods for resolving disputes outside of the official judicial mechanisms. Second, informal methods attached to or pendant to official judicial mechanisms. There are in addition free-standing and or independent methods, such as mediation programs and ombuds offices within organizations. The methods are similar, whether or not they are pendant, and generally use similar tool or skill sets, which are basically sub-sets of the skills of negotiation.
ADR includes informal tribunals, informal mediative processes, formal tribunals and formal mediative processes. The classic formal tribunal forms of ADR are arbitration (both binding and advisory or non-binding) and private judges (either sitting alone, on panels or over summary jury trials). The classic formal mediative process is referral for mediation before a court-appointed mediator or mediation panel. Structured transformative mediation as used by the U.S. Postal Service is a formal process. Classic informal methods include social processes, referrals to non-formal authorities (such as a respected member of a trade or social group) and intercession. The major differences between formal and informal processes are (a) pendency to a court procedure and (b) the possession or lack of a formal structure for the application of the procedure.
For example, freeform negotiation is merely the use of the tools without any process. Negotiation within a labor arbitration setting is the use of the tools within a highly formalized and controlled setting.
Calling upon an organizational ombudsman's office is never, by itself, a formal procedure. (Calling upon an organizational ombudsman is always voluntary; by the International Ombudsman Association Standards of Practice, no one can be compelled to use an ombuds office.)
Organizational ombuds offices refer people to all conflict management options in the organization: formal and informal, rights-based and interest-based. But, in addition, in part because they have no decision-making authority, ombuds offices can, themselves, offer a wide spectrum of informal options.
This spectrum is often overlooked in contemporary discussions of "ADR". "ADR" often refers to external conflict management options that are important, but used only occasionally. An organizational ombuds office typically offers many internal options that are used in hundreds of cases a year. These options include:
- delivering respect, for example, affirming the feelings of a visitor, while staying explicitly neutral on the facts of a case,
- active listening, serving as a sounding board,
- providing and explaining information, one-on-one, for example, about policies and rules, and about the context of a concern,
- receiving vital information, one-on-one, for example, from those reporting unacceptable or illegal behavior,
- reframing issues,
- helping to develop and evaluate new options for the issues at hand,
- offering the option of referrals to other resources, to "key people" in the relevant department, and to managers and compliance offices,
- helping people help themselves to use a direct approach, for example, helping people collect and analyze their own information, helping people to draft a letter about their issues, coaching and role-playing,
- offering shuttle diplomacy, for example, helping employees and managers to think through proposals that may resolve a dispute, facilitating discussions,
- offering mediation inside the organization,
- "looking into" a problem informally,
- facilitating a generic approach to an individual problem, for example instigating or offering training on a given issue, finding ways to promulgate an existing policy,
- identifying and communicating throughout the organization about "new issues",
- identifying and communicating about patterns of issues,
- working for systems change, for example, suggesting new policies, or procedures,
- following up with a visitor, following up on a system change recommendation. (See Rowe, Mary, Informality — The Fourth Standard of Practice, in JIOA, vol 5, no 1, (2012) pp 8–17.)
Informal referral to a co-worker known to help people work out issues is an informal procedure. Co-worker interventions are usually informal.
Conceptualizing ADR in this way makes it easy to avoid confusing tools and methods (does negotiation once a lawsuit is filed cease to be ADR? If it is a tool, then the question is the wrong question) (is mediation ADR unless a court orders it? If you look at court orders and similar things as formalism, then the answer is clear: court annexed mediation is merely a formal ADR process).
Dividing lines in ADR processes are often provider driven rather than consumer driven. Educated consumers will often choose to use many different options depending on the needs and circumstances that they face.
Finally, it is important to realize that conflict resolution is one major goal of all the ADR processes. If a process leads to resolution, it is a dispute resolution process.
The salient features of each type are as follows:
- In negotiation, participation is voluntary and there is no third party who facilitates the resolution process or imposes a resolution. (NB – a third party like a chaplain or organizational ombudsperson or social worker or a skilled friend may be coaching one or both of the parties behind the scene, a process called "Helping People Help Themselves" – see Helping People Help Themselves, in Negotiation Journal July 1990, pp. 239–248, which includes a section on helping someone draft a letter to someone who is perceived to have wronged them.)
- In mediation, there is a third party, a mediator, who facilitates the resolution process (and may even suggest a resolution, typically known as a "mediator's proposal"), but does not impose a resolution on the parties. In some countries (for example, the United Kingdom), ADR is synonymous with what is generally referred to as mediation in other countries.
- In collaborative law or collaborative divorce, each party has an attorney who facilitates the resolution process within specifically contracted terms. The parties reach agreement with support of the attorneys (who are trained in the process) and mutually agreed experts. No one imposes a resolution on the parties. However, the process is a formalized process that is part of the litigation and court system. Rather than being an Alternative Resolution methodology it is a litigation variant that happens to rely on ADR like attitudes and processes.
- In arbitration, participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. This is known as a 'Scott Avery Clause'. In recent years, the enforceability of arbitration clauses, particularly in the context of consumer agreements (e.g., credit card agreements), has drawn scrutiny from courts. Although parties may appeal arbitration outcomes to courts, such appeals face an exacting standard of review.
Beyond the basic types of alternative dispute resolutions there are other different forms of ADR:
- Case evaluation: a non-binding process in which parties present the facts and the issues to a neutral case evaluator who advises the parties on the strengths and weaknesses of their respective positions, and assesses how the dispute is likely to be decided by a jury or other adjudicator.
- Early neutral evaluation: a process that takes place soon after a case has been filed in court. The case is referred to an expert who is asked to provide a balanced and neutral evaluation of the dispute. The evaluation of the expert can assist the parties in assessing their case and may influence them towards a settlement.
- Family group conference: a meeting between members of a family and members of their extended related group. At this meeting (or often a series of meetings) the family becomes involved in learning skills for interaction and in making a plan to stop the abuse or other ill-treatment between its members.
- Neutral fact-finding: a process where a neutral third party, selected either by the disputing parties or by the court, investigates an issue and reports or testifies in court. The neutral fact-finding process is particularly useful for resolving complex scientific and factual disputes.
- Ombuds: third party selected by an institution – for example a university, hospital, corporation or government agency – to deal with complaints by employees, clients or constituents.
An organizational ombudsman works within the institution to look into complaints independently and impartially.
"Alternative" dispute resolution is usually considered to be alternative to litigation. It also can be used as a colloquialism for allowing a dispute to drop or as an alternative to violence.
In recent years there has been more discussion about taking a systems approach in order to offer different kinds of options to people who are in conflict, and to foster "appropriate" dispute resolution.
That is, some cases and some complaints in fact ought to go to formal grievance or to court or to the police or to a compliance officer or to a government IG. Other conflicts could be settled by the parties if they had enough support and coaching, and yet other cases need mediation or arbitration. Thus "alternative" dispute resolution usually means a method that is not the courts. "Appropriate" dispute resolution considers all the possible responsible options for conflict resolution that are relevant for a given issue.
ADR can increasingly be conducted online, which is known as online dispute resolution (ODR, which is mostly a buzzword and an attempt to create a distinctive product). It should be noted, however, that ODR services can be provided by government entities, and as such may form part of the litigation process. Moreover, they can be provided on a global scale, where no effective domestic remedies are available to disputing parties, as in the case of the UDRP and domain name disputes. In this respect, ODR might not satisfy the "alternative" element of ADR.
Benefits and disadvantages
ADR has several advantages over litigation:
- Suitable for multi-party disputes
- Lower costs
- Likelihood and speed of settlements
- Flexibility of process
- Parties' control of process
- Parties' choice of forum
- Practical solutions
- Wider range of issues can be considered
- Shared future interests may be protected
- Risk management
However, ADR less suitable than litigation when there is:
- A need for precedent
- A need for court orders
- A need for interim orders
- A need for evidential rules
- A need for enforcement
- Power imbalance between parties
- Quasi-criminal allegations
- Complexity in the case
Traditional people's mediation has always involved the parties remaining in contact for most or all of the mediation session. The innovation of separating the parties after (or sometimes before) a joint session and conducting the rest of the process without the parties in the same area was a major innovation and one that dramatically improved mediation's success rate.
Traditional arbitration involved heads of trade guilds or other dominant authorities settling disputes. The modern innovation was to have commercial vendors of arbitrators, often ones with little or no social or political dominance over the parties. The advantage was that such persons are much more readily available. The disadvantage is that it does not involve the community of the parties. When wool contract arbitration was conducted by senior guild officials, the arbitrator combined a seasoned expert on the subject matter with a socially dominant individual whose patronage, good will and opinion were important.
Private judges and summary jury trials are cost- and time-saving processes that have had limited penetration due to the alternatives becoming more robust and accepted.
Latin has a number of terms for mediator that predate the Roman Empire. Any time there are formal adjudicative processes it appears that there are informal ones as well. It is probably fruitless to attempt to determine which group had mediation first.
Njáls saga is an Icelandic story of a mediator who was so successful that he eventually threatened the local power structure. It ends in tragedy with the unlawful burning of Njal alive in his home, the escape of a friend of the family, a mini-war and the eventual ending of the dispute by the intermarriage of the two strongest survivors. It illustrates that mediation was a powerful process in Iceland.
Alternative dispute resolution in India is not new and it was in existence even under the previous Arbitration Act, 1940. The Arbitration and Conciliation Act, 1996 has been enacted to accommodate the harmonisation mandates of UNCITRAL Model. To streamline the Indian legal system the traditional civil law known as Code of Civil Procedure, (CPC) 1908 has also been amended and section 89 has been introduced. Section 89 (1) of CPC provides an option for the settlement of disputes outside the court. It provides that where it appears to the court that there exist elements, which may be acceptable to the parties, the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement.
Due to extremely slow judicial process, there has been a big thrust on Alternate Dispute Resolution mechanisms in India. While Arbitration and Conciliation Act, 1996 is a fairly standard western approach towards ADR, the Lok Adalat system constituted under National Legal Services Authority Act, 1987 is a uniquely Indian approach.
A study on commercial dispute resolution in south India has been done by a think tank organization based in Kochi, Centre for Public Policy Research. The study reveals that the Court-annexed Mediation Centre in Bangalore has a success rate of 64%, and its counterpart in Kerala has an average success rate of 27.7%. Further, amongst the three southern states (Karnataka, Tamil Nadu, and Kerala), Tamil Nadu is said to have the highest adoption of dispute resolution, Kerala the least.
Arbitration and Conciliation Act, 1996
Part I of this act formalizes the process of Arbitration and Part III formalizes the process of Conciliation. (Part II is about Enforcement of Foreign Awards under New York and Geneva Conventions.)
The process of arbitration can start only if there exists a valid Arbitration Agreement between the parties prior to the emergence of the dispute. As per Section 7, such an agreement must be in writing. The contract regarding which the dispute exists, must either contain an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement. The existence of an arbitration agreement can also be inferred by written correspondence such as letters, telex, or telegrams which provide a record of the agreement. An exchange of statement of claim and defense in which existence of an arbitration agreement is alleged by one party and not denied by other is also considered as valid written arbitration agreement.
Any party to the dispute can start the process of appointing arbitrator and if the other party does not cooperate, the party can approach the office of Chief Justice for appointment of an arbitrator. There are only two grounds upon which a party can challenge the appointment of an arbitrator – reasonable doubt in the impartiality of the arbitrator and the lack of proper qualification of the arbitrator as required by the arbitration agreement. A sole arbitrator or a panel of arbitrators so appointed constitute the Arbitration Tribunal.
Except for some interim measures, there is very little scope for judicial intervention in the arbitration process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before the tribunal itself. If the tribunal rejects the request, there is little the party can do except to approach a court after the tribunal makes an award. Section 34 provides certain grounds upon which a party can appeal to the principal civil court of original jurisdiction for setting aside the award.
The period for filing an appeal for setting aside an award is over, or if such an appeal is rejected, the award is binding on the parties and is considered as a decree of the court.
Conciliation is a less formal form of arbitration. This process does not require an existence of any prior agreement. Any party can request the other party to appoint a conciliator. One conciliator is preferred but two or three are also allowed. In case of multiple conciliators, all must act jointly. If a party rejects an offer to conciliate, there can be no conciliation.
Parties may submit statements to the conciliator describing the general nature of the dispute and the points at issue. Each party sends a copy of the statement to the other. The conciliator may request further details, may ask to meet the parties, or communicate with the parties orally or in writing. Parties may even submit suggestions for the settlement of the dispute to the conciliator.
When it appears to the conciliator that elements of settlement exist, he may draw up the terms of settlement and send it to the parties for their acceptance. If both the parties sign the settlement document, it shall be final and binding on both.
Note that in the US, this process is similar to mediation. However, in India, mediation is different from conciliation and is a completely informal type of ADR mechanism.
Etymologically, Lok Adalat means "people's court". India has had a long history of resolving disputes through the mediation of village elders. The current system of Lok Adalats is an improvement on that and is based on Gandhian principles. This is a non-adversarial system, whereby mock courts (called Lok Adalats) are held by the State Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal Services Committee, or Taluk Legal Services Committee, periodically for exercising such jurisdiction as they thinks fit. These are usually presided by retired judge, social activists, or members of legal profession. It does not have jurisdiction on matters related to non-compoundable offences.
While in regular suits, the plaintiff is required to pay the prescribed court fee, in Lok Adalat, there is no court fee and no rigid procedural requirement (i.e. no need to follow process given by [Indian] Civil Procedure Code or Indian Evidence Act), which makes the process very fast. Parties can directly interact with the judge, which is not possible in regular courts.
Cases that are pending in regular courts can be transferred to a Lok Adalat if both the parties agree. A case can also be transferred to a Lok Adalat if one party applies to the court and the court sees some chance of settlement after giving an opportunity of being heard to the other party.
The focus in Lok Adalats is on compromise. When no compromise is reached, the matter goes back to the court. However, if a compromise is reached, an award is made and is binding on the parties. It is enforced as a decree of a civil court. An important aspect is that the award is final and cannot be appealed, not even under Article 226 of the Constitution of India [which empowers the litigants to file Writ Petition before High Courts] because it is a judgement by consent.
All proceedings of a Lok Adalat are deemed to be judicial proceedings and every Lok Adalat is deemed to be a Civil Court.
Permanent Lok Adalat for public utility services
In order to get over the major drawback in the existing scheme of organisation of Lok Adalats under Chapter VI of the Legal Services Authorities Act 1987, in which if the parties do not arrive at any compromise or settlement, the unsettled case is either returned to the back to the court or the parties are advised to seek remedy in a court of law, which causes unnecessary delay in dispensation of justice, Chapter VI A was introduced in the Legal Services Authorities Act, 1987, by Act No.37/2002 with effect from 11-06-2002 providing for a Permanent Lok Adalat to deal with pre-litigation, conciliation and settlement of disputes relating to Public Utility Services, as defined u/sec.22 A of the Legal Services Authorities Act, 1987, at pre-litigation stage itself, which would result in reducing the work load of the regular courts to a great extent. Permanent Lok Adalat for Public Utility Services, Hyderabad, India
The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two other members, usually a lawyer and a social worker. There is no court fee. If the case is already filed in the regular court, the fee paid will be refunded if the dispute is settled at the Lok Adalat. The procedural laws, and the Evidence Act are not strictly followed while assessing the merits of the claim by the Lok Adalat.
Main condition of the Lok Adalat is that both parties in dispute should agree for settlement. The decision of the Lok Adalat is binding on the parties to the dispute and its order is capable of execution through legal process. No appeal lies against the order of the Lok Adalat.
Lok Adalat is very effective in settlement of money claims. Disputes like partition suits, damages and matrimonial cases can also be easily settled before Lok Adalat as the scope for compromise through an approach of give and take is high in these cases.
Lok Adalat is a boon to the litigant public, where they can get their disputes settled fast and free of cost.
The relevant laws (or parlour provisions) dealing with the ADR are summarised as under:
- S.89-A of the Civil Procedure Code, 1908 (Indian but amended in 2002) read with Order X Rule 1-A (deals with alternative dispute resolution methods).
- The Small Claims and Minor Offences Courts Ordinance, 2002.
- Sections 102–106 of the Local Government Ordinance, 2001.
- Sections 10 and 12 of the Family Courts Act, 1964.
- Chapter XXII of the Code of Criminal Procedure, 1898 (summary trial provisions).
- The Arbitration Act, 1940 (Indian).
- Articles 153–154 of the Constitution of Pakistan, 1973 (Council of Common Interest)
- Article 156 of the Constitution of Pakistan, 1973 (National Economic Council)
- Article 160 of the Constitution of Pakistan, 1973 (National Finance Commission)
- Article 184 of the Constitution of Pakistan, 1973 (Original Jurisdiction when federal or provincial governments are at dispute with one another)
- Arbitration (International Investment Disputes) Act, 2011
- Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011
Before modern state law was introduced under colonialism, African customary legal systems mainly relied on mediation and conciliation. In many countries, these traditional mechanisms have been integrated into the official legal system. In Benin, specialised tribunaux de conciliation hear cases on a broad range of civil law matters. Results are then transmitted to the court of first instance where either a successful conciliation is confirmed or jurisdiction is assumed by the higher court. Similar tribunals also operate, in varying modes, in other francophone African countries.
In the United Kingdom, ADR is encouraged as a mean of resolving taxpayers' disputes with Her Majesty's Revenue and Customs.
In the regulated sectors, finance, telecoms and energy ADR providers exist. Outside of the regulated areas there are schemes in many sectors which provide schemes for voluntary membership. Two sets of regulations, in March and June 2015, were laid in Parliament to implement the European Directive on alternative dispute resolution in the UK.
SECNAVINST 5800.13A established the DON ADR Program Office with the following missions:
- Coordinate ADR policy and initiatives;
- Assist activities in securing or creating cost effective ADR techniques or local programs;
- Promote the use of ADR, and provide training in negotiation and ADR methods;
- Serve as legal counsel for in-house neutrals used on ADR matters; and,
- For matters that do not use in-house neutrals, the program assists DON attorneys and other representatives concerning issues in controversy that are amenable to using ADR.
The ADR Office also serves as the point of contact for questions regarding the use of ADR. The Assistant General Counsel (ADR) serves as the "Dispute Resolution Specialist" for the DON, as required by the Administrative Dispute Resolution Act of 1996. Members of the office represent the DON’s interests on a variety of DoD and interagency working groups that promote the use of ADR within the Federal Government.
Cardozo School of Law's Kukin Program for Conflict Resolution
Cardozo School of Law's Kukin Program for Conflict Resolution is the seventh ranked alternative dispute resolution program in the country. The program includes: courses in negotiation, mediation, arbitration and dispute resolution processes; out-of-the-classroom-applied learning and scholarship in Cardozo’s Mediation Clinic and Securities Arbitration Clinic; the Cardozo Journal of Conflict Resolution, a student-run triannual publication; the Cardozo Dispute Resolution Society; and a Certificate in Dispute Resolution, awarded to J.D. students who complete coursework, writing and service requirements. LL.M. students can also receive an LL.M. in Dispute Resolution and Advocacy.
Cornell University's Scheinman Institute on Conflict Resolution
Cornell's ILR School has joined forces with Cornell's Law School to present the country's most comprehensive conflict resolution program focusing on workplace alternative dispute resolution (ADR). The Martin and Laurie Scheinman Institute on Conflict Resolution mission is to educate the next generation of neutrals – arbitrators, mediators and facilitators – who can help resolve disputes between employers and employees, both unionized and non-unionized. The Institute provides training for undergraduate and graduate students, consultation and evaluation, and conducts research. It also offers courses in two- to five-day sessions designed for professionals who are interested in or practicing in the workplace dispute resolution field. These highly intensive and participatory courses are coordinated by Cornell ILR faculty and are held in the ILR School's conference center in Manhattan and on the Ithaca campus. Participants can earn two certificates, Workplace Alternative Dispute Resolution and Conflict Management and Labor Arbitration.
Fordham Law School's Dispute Resolution Program
Fordham Law School’s Dispute Resolution program placed in the top 10 of U.S. News & World Report's 2008 rankings of the best Dispute Resolution programs in the nation, according to the recently released rankings. Along with Fordham's Clinical Training program, the Dispute Resolution program is the top-ranked specialty program at Fordham Law School. The Alternative Dispute Resolution program at Fordham combines an integrated agenda of teaching, scholarship, and practice in conflict resolution within the national and international communities. In addition to the classroom and clinical experience, the law school's student-run Dispute Resolution Society competes in ABA-sponsored interschool competitions as well as international mediation and arbitration competitions. In 2008 the Society's teams won the ABA Regional Negotiation Competition, placed third overall in the International Chamber of Commerce Commercial Mediation Competition in Paris, and reached the semifinals of the Willem C. Vis (East) International Commercial Arbitration Competition in Hong Kong. Additionally, Fordham's Dispute Resolution Society hosts an annual symposium on current Dispute Resolution topics and also teaches a class on dispute resolution skills to seniors at the Martin Luther King, Jr. High School in New York City.
Harvard Program on Negotiation
"The [Harvard] Program on Negotiation (PON) is a university consortium dedicated to developing the theory and practice of negotiation and dispute resolution. As a community of scholars and practitioners, PON serves a unique role in the world negotiation community. Founded in 1983 as a special research project at Harvard Law School, PON includes faculty, students, and staff from Harvard University, Massachusetts Institute of Technology and Tufts University." Harvard currently offers 12-week courses on negotiation and mediation for participants from all disciplines and professions as well as weekend seminars taught by their professors. The Harvard PON program is currently ranked #3 falling from #2 last year according to the U.S. World and News Report, and has also remained among the top 10 schools over the last decade.
Straus Institute for Dispute Resolution
Pepperdine University School of Law’s Straus Institute for Dispute Resolution provides professional training and academic programs in dispute resolution including a Certificate, Masters in Dispute Resolution (MDR) and Masters of Law in Dispute Resolution (LLM). Straus provides education to law and graduate students, as well as mid-career professionals in areas of mediation, negotiation, arbitration, international dispute resolution and peacemaking. The Straus Institute is ranked the number one Dispute Resolution school in the nation by US News and World Report.
CUNY Dispute Resolution Consortium
The City University of New York Dispute Resolution Consortium (CUNY DRC) serves as an intellectual home to dispute-resolution faculty, staff and students at the City University of New York and to the diverse dispute-resolution community in New York City. At the United States' largest urban university system, the CUNY DRC has become a focal point for furthering academic and applied conflict resolution work in one of the world's most diverse cities. The CUNY DRC conducts research and innovative program development, has co-organized countless conferences, sponsored training programs, resolved a wide range of intractable conflicts, published research working papers and a newsletter. It also maintains an extensive database of those interested in dispute resolution in New York City, a website with resources for dispute resolvers in New York City and since 9/11, the CUNY DRC assumed a leadership role for dispute-resolvers in New York City by establishing an extensive electronic mailing list, sponsoring monthly breakfast meetings, conducting research on responses to catastrophes, and managing a public awareness initiative to further the work of dispute resolvers.
CPR Institute for Dispute Resolution
The International Institute for Conflict Prevention and Resolution, known as the CPR Institute, is a New York City membership-based nonprofit organization that "promotes excellence and innovation in public and private dispute resolution". To this end, it serves as a "primary multinational resource for avoidance, management, and resolution of business-related disputes".
The CPR Institute was founded in 1979 as the Center for Public Resources by a coalition of leading corporate general counsel dedicated to identifying and applying appropriate alternative solutions to business disputes, thereby mitigating the extraordinary costs of lengthy court trials. Today, the CPR Institute is a nonprofit educational corporation existing under the New York state laws, and is tax exempt pursuant to Section 501(c)(3) of the U.S. Internal Revenue Code. It is governed by a board of directors, and its priorities and policies are guided in large part by consultation with an executive advisory committee. Its funding is primarily derived from the annual contributions of its member organizations, and from its mission-related programming. The various operations and activities that fulfill the Institute’s mission are captured in the acronym of its name:
- C: CPR convenes legal and business leadership to develop, and encourage the exchange of, best practices in avoiding, managing and resolving disputes.
- P: CPR publishes its own work and that of other like-minded organizations, making resources available to a global community of problem-solvers.
- R: CPR helps to resolve complex disputes among sophisticated parties, by devising rules, protocols and best practices, and by providing disputants with resources and consulting expertise in selecting appropriate methods and neutrals to assist in the dispute resolution process.
Established at George Mason as an alternative to a sociology program due to Virginia's then policy against duplicating graduate schools, it was the nation's first major dispute resolution graduate program. It has been a major success.
- ^Australian Securities and Investments Commission - Complaints resolution schemes. Asic.gov.au. Retrieved on 2013-07-14.
- ^Litvak, Jeff; Miller, Brent. "Using Due Diligence and Alternative Dispute Resolutions to Resolve Post-Acquisition Disputes". Transaction Advisors. ISSN 2329-9134.
- ^Totaro, Gianna., "Avoid court at all costs" The Australian Financial Review Nov. 14 2008. (April 19, 2010)
- ^Taken with permission from a presentation by Stephen R. Marsh of http://adrr.com/
- ^Scott v. Avery, 5 House of Lords, 811, 854
- ^Schwartz, David S., "Mandatory Arbitration and Fairness." 84 Notre Dame L. Rev. 1247 (April 19, 2010)
- ^International Institute for Conflict Prevention & Resolution. "Arbitration Appeal Procedure." http://www.cpradr.org/ClausesRules/ArbitrationAppealProcedure/tabid/79/Default.aspx
- ^"What You Need to Know about Dispute Resolution: The Guide to Dispute Resolution Processes." American Bar Association. http://www.abanet.org/dispute/draftbrochure.pdf
- ^Lynch, J. "ADR and Beyond: A Systems Approach to Conflict Management", Negotiation Journal, Volume 17, Number 3, July 2001, Volume, p. 213.
- ^Archived 20 September 2006 at the Wayback Machine.
- ^""See You In Court" Or "See You Out Of Court" ? A Burdened Judicial System; Can ADR System Be An Answer?..."
- ^Dominik Kohlhagen, ADR and Mediation: the Experience of French-Speaking Countries, Addis Abada, 2007 (on ADR in Africa).
- ^HMRC 'Tax disputes: Alternative Dispute Resolution (ADR)' https://www.gov.uk/guidance/tax-disputes-alternative-dispute-resolution-adr accessed 23 September 2015
- ^Cardozo School of Law's Kukin Program for Conflict Resolution
- ^Welcome to the Program on Negotiation (PON). Pon.harvard.edu. Retrieved on 2013-07-14.
- ^Best Dispute Resolution Programs | Top Law Schools | US News Best Graduate Schools. Grad-schools.usnews.rankingsandreviews.com. Retrieved on 2013-07-14.
- ^Straus Institute for Dispute Resolution | School of Law | Pepperdine University. Law.pepperdine.edu. Retrieved on 2013-07-14.
- ^Straus Institute for Dispute Resolution, Pepperdine Law School
- ^"Best Law Schools Specialty Rankings: Dispute Resolution." U.S. World and News Report "Archived copy". Archived from the original on 8 March 2009. Retrieved 2009-02-08.
- ^ abArchived 24 September 2007 at the Wayback Machine.
- Lynch, J. "ADR and Beyond: A Systems Approach to Conflict Management", Negotiation Journal, Volume 17, Number 3, July 2001, Volume, p. 213.
- Gary Born. "International Commercial Arbitration" (2009 Kluwer).
- William Ury, Roger Fisher, Bruce Patton. "Getting to Yes" (1981 Penguin Group).
- European Mediation Training for Practitioners of Justice - EMTPJ
- Party-Directed Mediation: Facilitating Dialogue Between Individuals by Gregorio Billikopf, free complete book PDF download, at the University of California (3rd Edition, posted 24 March 2014)
- Party-Directed Mediation: Facilitating Dialogue Between Individuals by Gregorio Billikopf, free complete book download, from Internet Archive (3rd Edition, multiple file formats including PDF, EPUB, and others)
- ADR International Register: ISO-based registration and certification for ADR practitioners such as arbitrators, conflictcoaches, mediators and negotiators.
The advantages and disadvantages of using alternative dispute resolution
The problems associated with court proceedings in civil cases are well documented. Lord Woolf, in his report, Access to Justice (1996), was highly critical of the then civil justice system.
Grade: A-C | £0.00.
The problems associated with court proceedings in civil cases are well documented. Lord Woolf, in his report Access to Justice (1996), was highly critical of the civil justice system operating at the time. He took the view that civil court proceedings could be unequal, slow, expensive, uncertain and complicated.
To prosecute or defend proceedings in the civil courts can be very costly. There is the matter of court fees as well as solicitor’s fees and, in some cases, barrister’s fees. There can be a considerable amount of preparation work as the system focuses on the trial, and this may include the preparation of witness statements, expert evidence and reports and drafting complex claims and particulars of the claim.
Once legal proceedings have commenced the parties themselves are no longer in complete control of the action as others become involved. This can cause a delay. These delays can come from such matters as the need for detailed instructions from the client, communications between legal representatives and the availability of counsel to advise and draft legal documentation. Court staff and officials also need to action and process the appropriate paperwork.
The court proceedings are very formal. They involve precise written claims, supporting legal arguments. The same can be said for defences. There are pre-trial hearings and applications for directions with strict time limits. This makes it difficult for an unqualified person to follow and understand.
The system is adversarial in nature. This means that the parties are each represented by legal representatives whose sole interest is to advance their client’s case. It is about winning and not losing so there is very little incentive to co-operate.
Another problem of court proceedings is that they can be very complex. Both the High Court and County Court have their own sets of rules that have to be followed, otherwise the parties risk applications to strike out their case for non-compliance. The rules relating to costs allowed are difficult for lay people to understand. The timetables are applied strictly by judges. This can be illustrated by the case of Vinos v Marks and Spencer PLC (2000) where a claim was struck out by the court due to the late service of the claim (9 days).
Finally, it could be argued that the courts are not always fair in the way it treats litigants. To pursue a case to appeal for example would be very time consuming and expensive. Commercial litigants such as insurance companies and banks and building societies have considerable resources at their disposal and this may mean that they are able to take full advantage of an individual who may have problems in funding their case. Delay and expense are likely to operate against individuals and commercial litigants will know this.
There are a number of advantages to using one of the methods of alternative dispute resolution (ADR) and under the Civil Procedure Rules it is generally expected that the parties should have considered the use of ADR before commencing court proceedings. It is the duty of the court to consider, at every stage in proceedings, whether alternative dispute resolution is appropriate.
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.
The courts now encourage the use of ADR as a result of the Woolf Reforms. Judges can stay proceedings to give parties the opportunity of exploring whether ADR might be of a possible benefit. In fact the Centre for Dispute Resolution has reported that there is a growing trend for Judges to stay proceedings. In 2000, 27% of disputes the Centre dealt with had been stayed. This compared to 19% in 1999 and only 8% in 1998.
The availability of ADR means that the use of these various methods can free up the courts for essential cases where ADR is inappropriate. The result being that the use of ADR has an impact upon vital resources and the effectiveness of civil courts. Many would argue that Lord Woolf should be commended for helping to identify the advantages of ADR and encouraging its greater use.
(Word Count 1325)
Alternative dispute resolution: the court's ... - Ministry of Justice
The Civil Courts and other forms of dispute resolution - arcade games quiz
CEDR : Effective Dispute Resolution
This essay discusses the problems of bringing civil proceedings in the civil courts. The work of Lord Woolf is also mentioned. It talks of court proceedings being unequal, slow, expensive, uncertain and complex and gives practical examples of these problems.
The essay then goes on to identify the advantages of using ADR (Alternative Dispute Resolution): cheapness, speed, control, non-adversarial, privacy and the use of experts. The work gives practical examples of these advantages.
The essay identifies a number of disadvantages: willingness to compromise, uncertainty, complexity and expense and gives practical examples of what this might mean in individual cases.
Finally the essay talks about the increased use of ADR and the power of judges to stay proceedings whilst the use of ADR is explored.
The essay refers to the case of Vinos v Marks and Spencer PLC (2000).
Organisations such as the Centre for Dispute Resolution and their influence are also raised.
This is an important study area and potential examination area for the purposes of A/S Law.