An alternate dispute resolution (ADR) is a method used to resolve issues without resorting to a court case. The different methods of doing so under the ADR umbrella include negotiation, mediation, and arbitration. This article explores the different methods and tries to explain to the readers the pros and cons of the same.
Starting with Mediation, the term "mediation" refers to the procedure wherein parties to a dispute are helped to resolve their differences by a neutral third party that does not favour one side). The neutral third person is known as the 'mediator', and the mediator helps the parties communicate by acting as the communicator between the two parties. The mediator controls the flow of information between the parties in a reasonable, transparent, and unbiased manner.
The mediators don't take sides, offer counsel, or offer legal advice to any parties. They do not serve in either of these capacities. They help by outlining the points of contention and locating the concerns of interest. They help each party comprehend the interests of the party in the other side. The parties may occasionally meet in person with the mediator. Sometimes a mediator will go back and forth between parties who are in different places. While they do not impose a solution, they aid in the quest for a resolution (a formal declaration of opinion or purpose stated) to the issue.
The choices made during mediation take done in secret. A cooperative agreement or a written instrument between the parties to collaborate on the specified terms and circumstances is known as a Memorandum of Agreement (MOA). Having a documented knowledge of the parties' agreement is the main goal of a MOA. is documented by the Mediator, indicating the specific agreements made between the parties. The Memorandum of Agreement should be reviewed by the parties' legal counsels (legal counsel is the person who represents the party in the dispute). Before mediation, each party is urged to speak with their attorney, so they are aware of the rights according to the law.
Some advantages of using the mediation method are that The settlement is entirely up to the parties and their mutual decision (if they can come to one). There is less anxiety involved for both parties compared to court cases and an arbitration session. There isn't much harm done to the parties' connection as the mediation process is fully private and is not revealed to the public by the mediators. The procedure is used usually to swiftly settle the disagreement.
The disadvantages of the mediation method are that some research show that with just two meetings of unmediated interaction competing parties can reach the best possible resolution in mediation when there is little to no dispute. When the level of conflict is high, as opposed to when it is low, the parties are less likely to achieve a settlement without mediation. The results of a mediation however are not binding on any parties and the parties involved may seek legal action even after mediation rounds have already taken place. A resolution is not guaranteed because the choice is left up to the parties' discretion. There is also a lack of formality because mediation sessions are not founded on any legal principles, they are devoid of any kind of procedural formality.
Moving onto Negotiation, through negotiation, two parties to a quarrel or disagreement can come to a mutually acceptable resolution. Without the assistance of a third party, negotiations are concluded through conversations between the parties or their agents. Before settling the dispute, each party should get legal advice or representation so that they are fully informed of their obligations with regard to the issue or disagreement they wish to resolve.
In some negotiation techniques there may also be a negotiator who is a third person and not involved in the case. In these cases, the negotiator decides the outcome of the issue instead of the parties coming to an agreement. In conflict resolution, the negotiator use a variety of communication techniques to bring the disputing parties to an agreement. The main goal of this method of conflict resolution is to get to a fair and mutually accepted agreement between the parties. The parties argue with one another until a solution that is agreeable to all parties is found.
There are some advantages to choosing negotiation as the method of resolving the issue which include, A Negotiation is a rather flexible procedure since it is an informal process and there is a constant push from the negotiator and or the legal representatives of the parties that are involved in the dispute. It makes swift decisions as opposed to courtroom battles that can continue for a long period of time. It helps the parties to a dispute retain a positive connection as it is conducted in a private setting between the two parties that are involved.
There are also some disadvantages to a negotiation which include the sheer lack of legal protection for the disputing parties. There is also possibility that the disputing parties will not be able to come to an agreement rendering the whole process a waste of time. In a negotiation, there may be an imbalance of power between the sides since the legal representatives of each party would be different in their approaches.
In comparison to court proceedings, negotiation and mediation are less expensive and time-consuming. Although an agreement is preferred, if one cannot be reached, the parties are free to seek alternative options such as arbitration.
The procedure where a third party makes the verdict is referred to as arbitration. The arbitrator considers the evidence put forth by the parties involved in the conflict or disagreement (fight) and renders a judgement or award just like a judge would. In most cases, decisions are final and compel all parties involved to be in accordance with it. An award may be brought before a court and made enforceable much like a court verdict. Commercial and labour conflicts frequently involve arbitration. In disputes over insurance claims, family matters, and the production of oil and gas, it is also employed.
To establish which issues, need to be resolved, the arbitrator sets up an appointment between the stakeholders. The arbitrator then conducts a session during which the parties exchange information and supporting documentation. Additionally, the arbitrator may ask for formal arguments before, during, or even after the session. After considering all of the information given to the arbitrator renders a ruling that is legally binding on the parties. The time it takes to get an arbitration judgement might sometimes be very long.
Arbitration may be required or be optional. In the instance of mandatory arbitration, the involved parties engage into the arbitration agreement either according to a legislation, a court order, or via a particular clause incorporated in the parties' contract. On the other hand, parties may choose to arbitrate a dispute voluntarily in the situation of mandatory arbitration. An arbitral award is the name given to the judgement that emerges from the process.
The advantages of choosing arbitration as a method of resolving an issue is that when compared to courtroom litigation, arbitration processes are more adaptable and financially viable. The whole process of arbitration progresses more quickly than litigation, which increases efficiency for the parties involved. The arbitration related conflicts are treated in confidence and are not made public. The parties are free to select the arbitrator who will hear their dispute. In comparison to court judgments, arbitration rulings are typically simpler to uphold and enforce upon the other party.
The disadvantages of using arbitration as the method of resolving a situation are the litigants' ability to go to court is surrendered if arbitration is required under the terms of their agreement. There are extremely few options for appeals and granting of interim injunction petitions is not permitted in arbitration. The execution of arbitration awards is subject to court approval; they are not binding and enforceable directly.
There are significant parallels and distinctions across the different Alternative Dispute Resolution (ADR) methods, as was previously described. These methods offer a variety of strategies that aid a disputing party in reaching a mutually agreeable resolution. These methods of resolving conflicts are now extensively used and accepted in many different contexts. The conflicting parties can choose between these methods on the basis of their preference and requirements from the issue.