Business, Legal & Accounting Glossary
A catchall term that describes a number of methods used to resolve disputes out of court, including negotiation, conciliation, mediation and the many types of arbitration. The common denominator of all ADR methods is that they are faster, less formalistic, cheaper and often less adversarial than a court trial. In recent years the term Alternative Dispute Resolution has begun to lose favor in some circles and ADR has come to mean Appropriate Dispute Resolution. The point of this semantic change is to emphasize that ADR methods stand on their own as effective ways to resolve disputes and should not be seen simply as alternatives to a court action.
Procedures for resolving legal conflicts between parties outside of the traditional court setting. ADR includes such processes as arbitration, mediation, and conciliation. The Civil procedure rules envisage an expanded role for ADR, and parties appearing in court have been penalised in costs for failing to take ADR seriously.
Alternative Dispute Resolution (ADR) is the name given to the process where parties in a dispute come to a compromise (or settle their dispute) without going to court. The main reason people use ADR is to save the expense of using the courts and solicitors.
There are four main forms of Alternative Dispute Resolution.
This is the simplest form of ADR. Where two people have a dispute they can negotiate a solution themselves. The advantages to the parties involved are that it is completely private and it’s fast and cheap.
Where parties to a dispute cannot settle it themselves they may instruct solicitors who will negotiate on their behalf. Even when negotiation fails at these early stages of a dispute and court proceedings start solicitors will usually continue to negotiate on their client’s behalf. This results in many cases being settled out of court.
This is where a neutral person (the mediator) helps the parties to reach a compromise. The job of the mediator is to consult with each party and see how much common ground there is between them. S/he should act as a facilitator, taking offers between the parties. The mediator doesn’t offer an opinion. Mediation is most suitable where there is some chance that the parties will co-operate. Mediation is not legally binding on the parties.
There are a number of organisations that offer mediation services. One of the main ones is the Centre for Dispute Resolution Many companies use their mediation services to save £1,000s in legal fees. The only disadvantage of using mediation to settle a dispute is there is no guarantee that a settlement will be reached. This means that you still have to use the courts, so in effect failure at the mediation stage can result in extra delays and extra costs.
However, the Centre for Dispute Resolution reports that around 80% of the disputes they deal with are settled without the need for any court action.
There are now many mediation services offered on-line such as The Mediation Room and Mediate
This is similar to mediation where a neutral third party helps the parties to resolve their dispute, however, the conciliator plays a more active role in the process. S/he will be expected to suggest ways in which a compromise could be reached. Conciliation is not legally binding on the parties.
The Advisory, Conciliation and Arbitration Service (ACAS) is used by many employers and Trade Unions to settle disputes before (and sometimes during) industrial action takes place.
ACAS offers conciliation to both sides in unfair dismissal claims before the claim can be taken to an Employment Tribunal. Around 60% of unfair dismissal claims are settled without the need for a hearing at an Employment Tribunal.
Arbitration is the most formal of the methods used to settle disputes without using the courts. Arbitration is where the parties with a disagreement pass their dispute to a third party, who will make a judgment on their behalf. This judgment will then be legally binding on the parties.
The agreement to go to arbitration can be made by the parties at any time. It can be written into a business contract by what is called a Scott v Avery clause or the parties may just agree on arbitration when a dispute arises.
The parties can agree on the number of arbitrators who will hear their dispute. It could be three, two or just one person. The parties will normally appoint someone who is an expert in their particular area of business. There is also the Institute of Arbitrators who will provide trained arbitrators to parties who wish to settle a dispute.
The actual procedure to be followed in any arbitration hearing is left to the parties to decide. Therefore, arbitration hearings can take many forms. The parties can decide on a paper arbitration, which means the parties submit everything to the arbitrator in writing, who will then read everything and make a decision. However, the parties can also have a hearing at which they appear and give evidence and witnesses may be called.
The decision made by the arbitrator is called an award and is legally binding on the parties.
As its name suggests, mediation-arbitration, or med-arb, combines mediation and arbitration. First, a mediator tries to bring the parties closer together and help them reach their own agreement. If the parties cannot compromise, they proceed to arbitration—before that same third party or before a different arbitrator—for a final and binding decision.
The minitrial, a development in ADR, is finding its greatest use in resolving large-scale disputes involving complex questions of mixed law and fact, such as product liability, massive construction, and antitrust cases. In a mini-trial, each party presents its case as in a regular trial, but with the notable difference that the case is “tried” by the parties themselves, and the presentations are dramatically abbreviated.
In a minitrial, lawyers and experts present a condensed version of the case to top management of both parties. Often, a neutral adviser—sometimes an expert in the subject area—sits with management and conducts the hearing. After these presentations, top management representatives—by now more aware of the strengths and weaknesses of each side—try to negotiate a resolution of the problem. If they are unable to do so, they often ask for the neutral adviser’s best guess as to the probable outcome of the case. They then resume negotiations.
The key to the success of this approach is the presence of both sides’ top officials and the exchange of information that takes place during the minitrial. Too often, prelitigation work has insulated top management from the true strengths and weaknesses of their cases. Mini-trial presentations allow them to see the dispute as it would appear to an outsider and set the stage for a cooperative settlement.
An early neutral evaluation (ENE) is used when one or both parties to a dispute seek the advice of an experienced individual, usually an attorney, concerning the strength of their cases. An objective evaluation by a knowledgeable outsider can sometimes move parties away from unrealistic positions, or at least provide them with more insight into their cases’ strengths and weaknesses. Of course, the success of this technique depends upon the parties’ faith in the fairness and objectivity of the neutral third-party, and their willingness to compromise.
Summary jury trials have been used prima-rily in the federal courts, where they provide parties with the opportunity to “try” their cases in an abbreviated fashion before a group of jurors, who then deliberate and render an Advisory Opinion.
Like an early neutral evaluation, an advisory opinion from a summary jury trial can help the parties assess the strengths and weaknesses of their cases and sometimes can facilitate the settlement of the dispute. Another advantage of the summary jury trial, which it has in common with the minitrial, is that it can be scheduled much sooner than a trial. When early evaluations help the parties settle their cases, the parties typically avoid much of the delay, expense, and anxiety that occurs in litigation.
Since the late 1980s, Congress has recognized that ADR provides a cost-efficient alternative to traditional methods for dispute resolution. In 1988, Congress enacted the Judicial Improvements and Access to Justice Act, 28U.S.C.A. § 652 (1993 & Supp. 2003), which permitted U.S. district courts to submit disputes to arbitration. Congress amended this statute with the enactment of the Alternative Dispute Resolution Act of 1998, Pub. L. No. 105-315, 112 Stat. 2994 (28 U.S.C.A. § 652), which requires each district court to require, by local rule, that litigants in all civil cases consider using an ADR process at the appropriate state of litigation.
Local rules of U.S. district courts typically provide a wide array of ADR methods. For example, the U.S. District Court for the Western District of Texas recognizes early neutral evaluation, mediation, minitrial, moderated settlement conference, summary jury trial, and arbitration as acceptable forms of ADR. W.D. Tex. Loc. R. CV-88. According to these rules, the court may order ADR on the motion of a party, on agreement of both parties, or on its own motion. Most other district courts have adopted similar rules. Congress has also included ADR provisions in a number of statutes to resolve a variety of disputes. For instance, the Board of Directors of the Office of Compliance, which reviews complaints brought by employees of Congress, may order counseling or mediation, in addition to holding a board hearing or initiating a civil action in federal court. 2 U.S.C.A. § 1401 (1997). Similar statutes apply to such conflicts as labor disputes and claims by individuals with disabilities.
State legislatures have similarly provided for ADR in many of their statutes. Judges in Florida, for example, possess authority to submit most types of cases to mediation or arbitration in lieu of litigation. Fla. Stat. § 44.1011 (1997). The commissioners on uniform laws have approved several uniform laws, which may be adopted by the various states, related to ADR proceedings. Versions of the Uniform Arbitration Act, first approved in 1956, have been adopted by 49 states. Likewise, the Uniform Mediation Act, drafted in conjunction with the American Bar Association’s Section on Dispute Resolution in 2001, provides rules on the issues of confidentiality and privileges in mediation.
ADR has had an impact on administrative agencies as well. Congress amended the Administrative Procedure Act in 1990 to authorize and encourage administrative agencies to submit administrative disputes to ADR. 5 U.S.C.A. § 572 (1996). ADR often takes the form of mediation in disputes involving labor and employment relations and equal employment opportunity. Several federal agencies provide guides about ADR proceedings to prospective complainants and other constituents.
Courts frequently uphold decisions made during ADR proceedings. In Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 121 S. Ct. 1724, 149 L. Ed. 2d 740 (2001), the U.S. Supreme Court reviewed a decision in which the Ninth Circuit Court of Appeals had reversed a decision of an arbitration panel regarding a complaint by former baseball player Steve Garvey about a contract dispute. The Ninth Circuit then remanded the case to the arbitration panel with instructions to enter an award in favor of the player for the amount he claimed. Noting that judicial review of labor arbitration decisions is limited, the Supreme Court reversed the Ninth Circuit’s decision, holding that it was not the place of a court of appeals to resolve the dispute on its merits.
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This glossary post was last updated: 9th October, 2021 | 7 Views.