Alternate Dispute Resolution (ADR)
Alternate Dispute Resolution (ADR) or external dispute resolution refers to dispute resolution processes and techniques that work as a means for conflicting parties to reach a settlement. It includes all the methods for resolving disputes, other than by litigation.
It is a comprehensive term used for the ways that parties can use for settling disputes, with or without the help of a third party. It also focuses on giving people more opportunities to determine when and how they want their dispute to be resolved.
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The concept of ADR is very broad. ADR is usually less formal, costly, and time-consuming than a court hearing. It may include methods such as early neutral evaluation, negotiation, conciliation, mediation, and arbitration.
Two of the most important sides of these procedures are related to the following:
- Whether the procedure is facilitative or evaluative
- Whether the procedure is binding or non-binding
In a facilitative process, a neutral person assists the conflicting parties in reaching an acceptable decision. It is usually a non-binding process where the parties voluntarily agree to accept the results. On the other hand, in the evaluative process, a neutral person evaluates the dispute and gives a judgment to the conflicting parties, to which they agree.
There are certain processes that may involve aspects of both facilitative and evaluative processes. These are called hybrid processes where the neutral person first attempts to provide a settlement based on his/ her own judgment but failing that, may give binding/non-binding decisions. However, the switch from facilitation to evaluation is done only with the consent of all the disputing parties.
Scope of ADR
Whenever there are disputes between parties, the matter is taken to a court for settlement. It is a time-consuming, expensive, and troublesome process and delays the case in many instances. In some cases, it takes many years to get the court decision. However, with globalization and liberalization, a need for a quick, less expensive, and simple mode of settling disputes was felt. The concept of ADR provided substitute dispute resolution techniques.
ADR can be used along with existing legal systems within common law jurisdictions. ADR traditions differ by country and culture. ADR methods are used for resolving disputes outside of official judicial mechanisms. These include informal tribunals, informal mediation processes, formal tribunals, and formal mediation processes.
The classic formal tribunal forms of ADR are arbitration and private judges. The classic formal mediative process is a recommendation for mediation before a court selects a mediator or mediation panel. Structured transformative mediation is a formal process. On the other hand, classic informal methods range from social processes and referrals to non-formal authorities and intercession.
Advantages of Alternate Dispute Resolution
Today, ADR techniques are considered one of the most acceptable dispute resolution techniques used worldwide, either alongside or combined with legal systems. This is because ADR is preferred over litigation for resolving disputes.
The main advantages of ADR are as follows:
- It is appropriate for resolving multi-party disputes.
- It has a flexible procedure. The parties can decide when and how they want the dispute to be resolved. Therefore, the process is controlled by the conflicting parties.
- It is less expensive than other methods.
- It is less complex.
- The third party involved in ADR happens to be Neutral to provide unbiased decisions.
- It settles the dispute without too much delay.
- It provides practical solutions to parties, which protect their interests.
- It maintains the privacy of the disputing parties.
- It maintains the relationships and reputations of the conflicting parties.
Conciliation in ADR
Conciliation refers to a process of managing the gap between the two sides of any weighing scale to bring them to equilibrium. Similarly, as an important ADR technique, conciliation bridges the gap that may arise between parties due to disputes or conflicts.
It brings an equilibrium in the concerns of both parties so that a mutual agreement is obtained. A third party is involved in this process, which tries to mediate and make a compromise between the disputing parties.
The reconciliation involves an interaction that concerns both parties through a conciliator that balances the views. The third party that acts as a mediator and solves the dispute is called a conciliator.
The representatives of the parties are brought for consultation with the conciliator to try to reduce the differences or concerns of both parties. The conciliator can be an individual or a group with whom both parties agree to share their concerns.
According to B.R. Patil, “Conciliation is a method of resolving a conflict with the help of a third party, who intervenes in the dispute situation upon a request by either or both the parties. It is a procedure in which the decision-making function remains the prerogative of the parties to the dispute as in collective bargaining. The conciliator simply assists them in their negotiations and decision-making, resolves the impasse, and removes the bottlenecks.”
In a manual for workers’ education on collective bargaining published by ILO, conciliation has been defined as, a “practice by which the services of a neutral party are used in a dispute as a means of helping the disputing parties to reduce the extent of their differences and to arrive at an amicable settlement or agreed solution”.
The Industrial Dispute Act, of 1947 has also recognized conciliators as a measure of settlement of industrial disputes through Section 4 of the Act. The Japanese dispute settlement procedure gives high importance to this type of dispute resolution for civil disputes.
It involves the following provisions:
- Appointing one or more conciliation officers through a notification in the Official Gazette by the appropriate government
- Assigning the responsibility of mediating in and promoting the settlement of industrial disputes to the conciliation officers so appointed
Therefore, conciliation can be defined as a voluntary proceeding where the disputing parties are free to agree to and resolve their dispute by conciliation. It is a flexible process that allows the concerned parties to define the time, structure, and content of the conciliation proceedings.
In conciliation, there is no legal standing, and the conciliator usually has no right to seek evidence or call witnesses. Its main goal is to conciliate, mostly by seeking concessions. In conciliation, the parties rarely face each other during the entire process.
Mediation in Law
Mediation implies an involvement of a third party called a mediator as a dispute resolution practitioner who facilitates the resolution of disputes between the parties.
Mediations take place when:
- Direct negotiations have failed, leading to an increase in dispute
- Direct negotiations are complex and difficult
- Multiple parties are involved, leading to confusion
The role of a mediator is to facilitate a consensual agreement among the parties in dispute. The mediator can also play the role of a conciliator by making suggestions.
Advantages of Mediation
The main advantages of mediation are as follows:
Mediation is a less expensive process, requiring less money for the service rendered.
Less Time Consuming
Mediation is a process that is comparatively less time-consuming than the litigation process; hence, mediations allow the speedy disposal of a matter.
Confidentiality of the Proceedings
In the mediation process, total confidentiality is maintained, as the whole process is not public in nature.