Introduction

Alternative dispute resolution (ADR) is a term that encompasses many different methods of

dispute resolution other than litigation. ADR involves resolving disputes outside of the

judicial process, though the judiciary can require parties to participate in specific types of

ADR, such as arbitration, for some types of conflicts. Moreover, some ADR methods vest

power to resolve the dispute in a neutral party, while other strategies vest that power in the

parties themselves. ADR is usually less formal, less expensive, and less time-consuming than

a trial. ADR can also give people more opportunity to determine when and how their dispute

will be resolved. 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,1

expressly contemplating so-called "compulsory" mediation; this means that attendance is

compulsory, not that settlement must be reached through mediation. In the words of Lord

Brooke, ADR is able “to achieve results satisfactory to both parties in many cases which are

quite beyond the power of lawyers and courts to achieve”

Alternative Dispute Resolution Processes

Alternative dispute resolution (ADR) is generally classified into at least four types:

negotiation, mediation, conciliation, and arbitration.

(I) Negotiation

Negotiation is any form of communication between two or more people for the purpose of

arriving at a mutually agreeable solution. In a negotiation, the disputants may represent

themselves or may be represented by a negotiating agent or agents. The people involved in

the negotiation, whether the disputants or their agents, maintain control over the negotiation
1
the European Mediation Directive (2008
process. In a negotiation, there is no neutral party charged with ensuring that rules are

followed, that the negotiation strategy is fair, or that the overall outcome is sound. Moreover,

any party can walk away whenever it wishes. There is no guarantee of resolution through this

method. The result may not be “win-win” or “win-lose,” but no resolution at all. Also,

generally speaking, attorneys are not involved in many negotiations.2 In the context of ADR,

when speaking about negotiation, there are certain terms such as competitive bargaining, co-

operative bargaining and principled negotiation. These modes of negotiation are said to arise

from different styles of negotiating. In competitive bargaining, the negotiators are so

concerned with substantive results that they may advocate extreme positions, create false

issues, mislead the other negotiator or bluff in order to gain advantage, try to ascertain the

other negotiator’s bottom line and only make concessions rarely and grudgingly. On the other

hand, co-operative negotiators focus on building a relationship of trust and co-operation.

They may, therefore, be prepared to make concessions on substantive issues, principally in

order to preserve the relationship. Principled negotiation, on the other hand, requires the

negotiators to focus on the interests of each of the disputants, with the goal of creating

satisfactory and elegant options for resolution which may be assessed by objective criteria.3

Negotiators need to understand negotiation process and other negotiators to increase their

chances to close deals, avoid conflicts, establishing relationship with other parties and gain

profit.4

Cases for which negotiation may be appropriate.

2
T. Lau, L. Johnson, Business and the Legal and Ethical Environment,
https://2012books.lardbucket.org/books/business-and-the-legal-and-ethical-environment/s07-alternative-
dispute-resolution.html, 12. 04. 2020.
3
A. K. Fiadjoe, Alternative Dispute Resolution; A developing world perspective, 2004, Cavendish Publishing,
London, UK.
4
Adnan, Muhamad Hariz Muhamad; Hassan, Mohd Fadzil; Aziz, Izzatdin; Paputungan, Irving V (August 2016).
"Protocols for agent-based autonomous negotiations: A review". 2016 3rd International Conference on
Computer and Information Sciences (ICCOINS). Kuala Lumpur, Malaysia: IEEE: 622–626.
doi:10.1109/ICCOINS.2016.7783287. ISBN 978-1-5090-2549-7.
Parties that wish to continue working together in the future often employ negotiation as a

friendly method to resolve disputes.

Cases for which negotiation may not be appropriate

Negotiation between parties with unequal bargaining power can result in the stronger party

being heavy-handed at the negotiation table, which can result in unfair outcomes for the

weaker party. Since negotiation does not follow an externally imposed set of rules, parties

may negotiate as their conscience dictates. 5

Mediation

In mediation, an impartial person called a "mediator" helps the parties try to reach a mutually

acceptable resolution of the dispute. The mediator does not decide the dispute but helps the

parties communicate so they can try to settle the dispute themselves. Mediation leaves control

of the outcome with the parties.6

Cases for Which Mediation May Be Appropriate

Mediation may be particularly useful when parties have a relationship they want to preserve.

So, when family members, neighbors, or business partners have a dispute, mediation may be

the ADR process to use. Mediation is also effective when emotions are getting in the way of

resolution. An effective mediator can hear the parties out and help them communicate with

each other in an effective and nondestructive manner

Cases for Which Mediation May Not Be Appropriate

Mediation may not be effective if one of the parties is unwilling to cooperate or compromise.

Mediation also may not be effective if one of the parties has a significant advantage in power

5
https://2012books.lardbucket.org/books/business-and-the-legal-and-ethical-environment/s07-alternative-
dispute-resolution.html, 12.04.2020
6
https://www.legalmatch.com/law-library/article/types-of-alternative-dispute-resolution-adr.html,
12.04.2020
over the other. Therefore, it may not be a good choice if the parties have a history of abuse or

victimization.7

Arbitration

In arbitration, a neutral person called an "arbitrator" hears arguments and evidence from each

side and then decides the outcome of the dispute. Arbitration is less formal than a trial, and

the rules of evidence are often relaxed. Arbitration may be either "binding" or "nonbinding."

Binding arbitration means that the parties waive their right to a trial and agree to accept the

arbitrator's decision as final. Generally, there is no right to appeal an arbitrator's decision.

Nonbinding arbitration means that the parties are free to request a trial if they do not accept

the arbitrator's decision.8

Cases for Which Arbitration May Be Appropriate

Arbitration is best for cases where the parties want another person to decide the outcome of

their dispute for them but would like to avoid the formality, time, and expense of a trial. It

may also be appropriate for complex matters where the parties want a decision-maker who

has training or experience in the subject matter of the dispute.

Cases for Which Arbitration May Not Be Appropriate

If parties want to retain control over how their dispute is resolved, arbitration, particularly

binding arbitration, is not appropriate. In binding arbitration, the parties generally cannot

appeal the arbitrator's award, even if it is not supported by the evidence or the law. Even in

nonbinding arbitration, if a party requests a trial and does not receive a more favorable result

at trial than in arbitration, there may be penalties.9

Conciliation
7
https://www.courts.ca.gov/3074.htm, 12.04.2020
8
https://eliasmunshya.org/2015/09/10/a-theory-of-alternative-dispute-resolution-in-zambia/, 12.04.2020
9
https://www.researchgate.net/publication/228214585_Alternative_Dispute_Resolution_ADR_A_Critical_Revi
ew_of_the_Recent_Literature, 12.04.2020
Conciliation is an ADR process where an independent third party, the conciliator, helps

people in a dispute to identify the disputed issues, develop options, consider alternatives and

try to reach an agreement. A conciliator may have professional expertise in the subject matter

in dispute and will generally provide advice about the issues and options for resolution.

However, a conciliator will not make a judgment or decision about the dispute. Conciliation

may be voluntary, court ordered or required as part of a contract. It is often part of a court or

government agency process.10

When conciliation maybe suitable

Conciliation is likely to be suitable if you want to reach an agreement on some technical and

legal issues, want assistance with the process, want to make the decision with the other

participants involved or want advice on the facts in your dispute. Conciliation may also be

suitable if you have tried mediation and still cannot reach agreement with the other

participants.

References

Books

1. K. Fiadjoe, Alternative Dispute Resolution; A developing world perspective,

2004, Cavendish Publishing, London, UK.

10
http://www.localcourt.justice.nsw.gov.au/Pages/adr/types_adr/conciliation.aspx, 12.04.2020
 2. Adnan, Muhamad Hariz Muhamad; Hassan, Mohd Fadzil; Aziz, Izzatdin;

Paputungan, Irving V (August 2016). "Protocols for agent-based autonomous

negotiations: A review". 2016 3rd International Conference on Computer and

Information Sciences (ICCOINS). Kuala Lumpur, Malaysia: IEEE: 622–626.

doi:10.1109/ICCOINS.2016.7783287. ISBN 978-1-5090-2549-7.

3. T. Lau, L. Johnson, Business and the Legal and Ethical Environment,

https://2012books.lardbucket.org/books/business-and-the-legal-and-ethical-

environment/s07-alternative-dispute-resolution.html,

Statutes

1. European Mediation Directive (2008)

Websites

1. https://www.researchgate.net/publication/228214585_Alternative_Dispute_Resolutio

n_ADR_A_Critical_Review_of_the_Recent_Literature,

2. http://www.localcourt.justice.nsw.gov.au/Pages/adr/types_adr/conciliation.aspx

3. https://www.courts.ca.gov/3074.htm,

4. https://eliasmunshya.org/2015/09/10/a-theory-of-alternative-dispute-resolution-in-

zambia/

5. https://2012books.lardbucket.org/books/business-and-the-legal-and-ethical-

environment/s07-alternative-dispute-resolution.html,

6. https://www.legalmatch.com/law-library/article/types-of-alternative-dispute-

resolution-adr.html