Arbitration and Alternate Dispute Resolution
The scope of the ADR is wide, ranging from relatively formal arbitration to ‘mini trials’ and a variety of types of informal consensual mediation.
- One of the earliest form of ADR is ‘Mediation’.
- Different scenarios for ADR:
o Court Based – The court comes up with a recommendation that there be ADR involved.
o Community Justice Centers – tend to undertake mediation in particular free of charge.
o Ombudsman – Another source of ADR. A lot of Disputes that he/she faces can be resolved and the ombudsman acts as the filter.
- Areas in which that type of ADR is used include: family, admin law, disagreements between individuals etc.
- The theory is that the parties voluntarily agree to meet or exchange views with the intention of reaching a settlement.
- The advantages of mediation are:
o Individuals generally feel that they, rather than their lawyers, are in charge of their legal disputes.
o Cases can be settled without publicity
o The procedures are relatively quick, cheap and flexible.
- The disadvantages are:
o Risk of unfairness where one party is more powerful than the other.
o Disputants and third party interests lose the protections provided by the formal rules of procedure, which apply in the courts.
- Commercial arbitration, although an alternative to court action, is distinguishable from the procedures, which are conventionally known as ADR.
- It is intended to lead to a binding determination of a dispute, enforceable through execution against the assets of the losing party.
- No appeal grounds.
- Arbitration may be conducted under the auspices of an international arbitral institution, such as the International Court of Arbitration of the International Chamber of Commerce, or may be handled ad hoc, using rules tailored to the specific requirements of the parties and the circumstances of the case.
o Procedural flexibility
o Speed and Cost
- You have an independent third party who helps to identify the disputed issues and the conciliator plays an advisory role.
- Conciliation is good where there is terms that need to be sorted out or where there is some expertise required in a certain area.
- Where that independent third party is an expert in a particular field.
- Third party is thee to assist but has that additional expertise.
When is an ADR NOT an appropriate method of resolution?
- Fear of violence involved
- When there is a public interest in the outcome of the dispute
- Where a party is not free to enter into that type of agreement
- Party Lacks the power or ability to negotiate on their own behalf (i.e. child)