What is ADR?
Alternative Dispute Resolution (ADR) is a form of dispute resolution which usually involves an independent person, such as an ADR practitioner (Mediator, Conciliator and Arbitrator etc.) that helps the parties resolve the issues between them.
The aim is to facilitate the resolution of the dispute before it escalates or reaches the point where legal proceedings are necessary and unavoidable. Because of its flexibility and the participation required from both parties, the outcomes are usually better off for both parties, who can control and agree on an outcome, instead of allowing a Court to decide one way or another.
By using ADR processes, the parties have a greater chance of finding some middle ground that they can agree upon and both be content with.
Why choose ADR?
Using ADR can benefit all parties and save them money in legal fees, and free up a lot of the Courts resources.
Some of the major benefits of ADR include:
Unlike legal proceedings, ADR processes can be flexible and adjusted to suit your dispute.
A lot of the times ADR processes are confidential and undertaken between the parties, as opposed to legal proceedings which are generally public record.
The parties to the dispute can choose who the ADR practitioner is, can agree on the scope of his role, and any other aspect of their involvement. In a Court, the Judge is bound by rules of evidence, regulations and other legislation which determines what they can and cannot do.
The parties can also decide on the outcome, in contrast with a Court which usually controls the outcome of the dispute between the parties.
The parties can also choose not to be represented by a Lawyer in some circumstances, whereas in Court it would be more difficult for a self-represented party because of the all the formalities and legal processes involved.
ADR processes are generally less expensive than going to Court to resolve your dispute.
ADR processes are more informal than going to Court, and are much easier for parties than legal proceedings.
ADR can involve a range of alternative methods to resolve a dispute, however, some of the most common methods include:
This is probably one of the most commonly used and simple ADR processes involved, which is where the parties and possibly their legal representatives negotiate amongst themselves to attempt to resolve the dispute.
It is always a good idea to keep an open mind and to openly discuss your issues completely with the other party without being overly critical or blaming the other party. Parties should try to find some common ground and think creatively amongst themselves for options that could resolve or settle the dispute.
This is where the parties involve a neutral third party to resolve the dispute. The Mediator will usually hear what the parties have to say and work out the issues, try to find what is the most important thing for each party and then try to find some middle ground or workable agreement.
Mediation is usually voluntary, but it can also be mandatory in certain Courts before legal proceedings can proceed to a hearing, or it may be ordered by a Court, or form part of Dispute Resolution Procedure in a Contract.
A Mediator can assist the parties in having a respectful and even-handed discussion, by controlling the conversation and intervening when parties are not providing any meaningful input which might assist in resolving the dispute.
Conciliation is where the parties involve the assistance of a Conciliator to identify the issues in dispute usually involving some specialised knowledge or expertise in a particular area, and then develop options and consider alternatives with an aim of trying to reach an agreement between the parties.
In some jurisdictions, such as in Family Law property and financial disputes, Conciliation is mandatory at an early stage of the proceedings. It can also be voluntary, or part of a Contract.
In Arbitration, the parties present their points of view and facts to an Arbitrator, which is an independent person appointed to hear and make a decision based on this information provided.
Arbitration is similar to Court proceedings and can be far more formal than Mediation or Conciliation. The parties are still generally required to produce evidence, which will assist the Arbitrator in making his decision.
Arbitration can also be voluntary, required by Court or part of a Dispute Resolution Procedure in a Contract.
What are the negative aspects of ADR?
While ADR processes are effective ways of resolving disputes without the intervention of the Court, or prior to a Court making a final determination, and in this sense, they can save the parties on legal costs, ADR processes rely upon all parties to the dispute coming to the table with a genuine interest and attitude in resolving the dispute.
In other words, ADR processes rely on the parties to the dispute in compromising and being willing to participate in the process with a view to reaching a resolution.
For more information on ADR processes, contact one of our Alternative Dispute Resolution lawyers in Sydney.