The Methods of Alternative Dispute Resolution
ADR methods offer a wide range of alternatives to litigation. They may be used alone or combined and modified to suit a specific context. The most important of these methods are summarized below:
- Negotiation and facilitation are at the core of most ADR efforts. Negotiation involves an exchange of information about interests and positions between the parties to help them reach a compromise solution. Facilitation brings in the help of an outside party, where such a compromise cannot be reached by the parties alone.
- Mediation is a more formal and structured kind of assisted negotiation conducted by a neutral third-party mediator (the “neutral”), who may use a variety of techniques to achieve a consensus-based solution agreeable to the parties. The neutral normally must be acceptable to all parties and usually has no authority to require them to accept a result. The neutral facilitates the process, helping the parties to understand their interests, identify common objectives, share information, explore various options, and arrive at an agreement for resolving the conflict. The neutral ordinarily will truly be neutral, having no stake in the particular project or technical issue. In some instances, he or she may be a technical specialist, or even have relationships with all parties (increasing the chance of influence, trust and community acceptance).
- Fact-finding/neutral evaluation provides an opportunity for parties to engage a professional expert in the area in controversy to review the facts and evaluate options and solutions to the dispute or narrow the breadth of the dispute in light of the realities of possible litigation. These efforts can also take the form of a “mini-trial” late in the pre-trial process where each side presents a limited version of its case before a neutral fact-finder and decision-makers from both sides. The neutral party works with the decision-makers in the hopes of facilitating a settlement.
- Binding arbitration is a relatively formal alternative to the court system. Arbitration consists of a hearing conducted by a neutral arbitrator or a panel of arbitrators usually consisting of one member chosen by each party and one chosen by the other members. The neutral arbitrator, usually a professional specializing in arbitration, or the panel, listens to the evidence and arguments of each party. The arbitrator or panel then renders a binding, or in some cases non-binding, decision based on existing law and procedure. The parties have, by prior agreement, entrusted the neutral with decision-making authority over the matter in dispute.