Alternative dispute resolution

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Alternative dispute resolution (ADR) includes dispute resolution processes and techniques that fall outside of the government judicial process. Despite historic resistance to ADR by both 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. The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.[citation needed]

ADR is generally classified into at least four subtypes: negotiation, mediation, collaborative law, and arbitration. (Sometimes a fifth type, conciliation, is included as well, but for present purposes it can be regarded as a form of mediation. See conciliation for further details.) The salient features of each type are as follows:

  • In negotiation, participation is voluntary and there is no third party who facilitates the resolution process or imposes a resolution.
  • In mediation, there is a third party, a mediator, who facilitates the resolution process (and may even suggest a resolution, typically known as a "mediator's proposal"), but does not impose a resolution on the parties. In some countries (for example, the United Kingdom), ADR is synonymous with what is generally referred to as mediation in other countries.
  • In collaborative law or collaborative divorce, each party has an attorney who facilitates the resolution process within specifically contracted terms. The parties reach agreement with support of the attorneys (who are trained in the process) and mutually-agreed experts. No one imposes a resolution on the parties.
  • In arbitration, participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. This is known as a 'Scott Avery Clause'. In recent years, the enforceability of arbitration clauses, particularly in the context of consumer agreements (e.g., credit card agreements), has drawn scrutiny from courts. Although parties may appeal arbitration outcomes to courts, such appeals face an exacting standard of review.

Beyond the basic types of alternative dispute resolutions there are other different forms of ADR: - Case evaluation: a non-binding process in which parties present the facts and the issues to a neutral case evaluator who advises the parties on the strengths and weaknesses of their respective positions, and assesses how the dispute is likely to be decided by a jury or other adjudicator. - Early neutral evaluation: a process that takes place soon after a case has been filed in court. The case is referred to an expert who is asked to provide a balanced and neutral evaluation of the dispute. The evaluation of the expert can assist the parties in assessing their case and may influence them towards a settlement. - Family group conference: a meeting between members of a family and members of their extended related group. At this meeting the family becomes involved in making a plan to stop the abuse or other ill-treatment between its members. -Neutral fact-finding: a process where a neutral third party, selected either by the disputing parties or by the court, investigates an issue and reports or testifies in court. The neutral fact-finding process is particularly useful for resolving complex scientific and factual disputes. - Ombuds: third party selected by an institution – for example a university, hospital – to investigate complaints by employees, clients or constituents. The ombuds works within the institution to investigate the complaints independently and impartially. (for further information see: http://www.abanet.org/dispute/draftbrochure.pdf)

"Alternative" dispute resolution is usually considered to be alternative to litigation. It also can be used as a colloquialism for allowing a dispute to drop or as an alternative to violence.

ADR - can increasingly be conducted online or by using technology. This branch of dispute resolution is known as online dispute resolution (ODR). It should be noted, however, that ODR services can be provided by government entities, and as such may form part of the litigation process. Moreover, they can be provided on a global scale, where no effective domestic remedies are available to disputing parties, as in the case of the UDRP and domain name disputes. In this respect, ODR might not satisfy the "alternative" element of ADR.

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[edit] ADR in Pakistan

In Pakistan, ADR is in vogue since long.[citation needed] The relevant laws (or particular provisions) dealing with the ADR are summarised as under:

1. S.89-A of the Civil Procedure Code, 1908 (as amended in 2002) read with Order X Rule 1-A (deals with alternative dispute resolution methods). 2. The Small Claims and Minor Offences Courts Ordinanace, 2002. 3. Sections 102-106 of the Local Government Ordinance, 2001. 4. Sections 10 and 12 of the Family Courts Act, 1964. 5. Chapter XXII of the Code of Criminal Procedure, 1898 (summary trial provisions). 6. The Arbitration Act, 1940. 7. Articles 153-154 of the Constitution of Pakistan, 1973 (Council of Common Interest) 8. Article 156 of the Constitution of Pakistan, 1973 (National Economic Council) 9. Article 160 of the Constitution of Pakistan, 1973 (National Finance Commission) 10.Article 184 of the Constitution of Pakistan, 1973 (Original Jurisdiction when federal or provincial governments are at dispute with one another)

[edit] ADR in India

Alternative dispute resolution in India is not new and it was in existence even under the previous Arbitration Act, 1940. The Arbitration and Conciliation Act, 1996 has been enacted to accommodate the harmonisation mandates of UNCITRAL Model. To streamline the Indian legal system the traditional civil law known as Code of Civil Procedure, (CPC) 1908 has also been amended and section 89 has been introduced. Section 89 (1) of CPC provides an option for the settlement of disputes outside the court. It provides that where it appears to the court that there exist elements, which may be acceptable to the parties, the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement.

[edit] ADR in the US Navy

SECNAVINST 5800.13A established the DON ADR Program Office with the following missions: Coordinate ADR policy and initiatives; Assist activities in securing or creating cost effective ADR techniques or local programs; Promote the use of ADR, and provide training in negotiation and ADR methods; Serve as legal counsel for in-house neutrals used on ADR matters; and, For matters that do not use in-house neutrals, the program assists DON attorneys and other representatives concerning issues in controversy that are amenable to using ADR. The ADR Office also serves as the point of contact for questions regarding the use of ADR. The Assistant General Counsel (ADR) serves as the “Dispute Resolution Specialist” for the DON, as required by the Administrative Dispute Resolution Act of 1996. Members of the office represent the DON’s interests on a variety of DoD and interagency working groups that promote the use of ADR within the Federal Government.

The program invites you to explore this website to learn about the many ways that ADR – and the ADR Program – can help you or your organization resolve issues in controversy at the earliest stage feasible, at the lowest organizational level, and with minimum expense.

[edit] Additional resources

[edit] Straus Institute For Dispute Resolution

Pepperdine University School of Law’s Straus Institute for Dispute Resolution provides professional training and academic programs in dispute resolution including a Certificate, Masters in Dispute Resolution (MDR) and Masters of Law in Dispute Resolution (LLM). Straus provides education to law and graduate students, as well as mid-career professionals in areas of mediation, negotiation, arbitration, international dispute resolution and peacemaking.

[edit] CUNY Dispute Resolution Consortium

The City University of New York Dispute Resolution Consortium (CUNY DRC) serves as an intellectual home to dispute-resolution faculty, staff and students at the City University of New York and to the diverse dispute-resolution community in New York City. At the United States' largest urban university system, the CUNY DRC has become a focal point for furthering academic and applied conflict resolution work in one of the world's most diverse cities. The CUNY DRC conducts research and innovative program development, has co-organized countless conferences, sponsored training programs, resolved a wide range of intractable conflicts, published research working papers and a newsletter. It also maintains an extensive database of those interested in dispute resolution in New York City, a website with resources for dispute resolvers in New York City and since 9/11, the CUNY DRC assumed a leadership role for dispute-resolvers in New York City by establishing an extensive electronic mailing list, sponsoring monthly breakfast meetings, conducting research on responses to catastrophes, and managing a public awareness initiative to further the work of dispute resolvers.

[edit] CPR Institute for Dispute Resolution

  • The International Institute for Conflict Prevention and Resolution - The International Institute for Conflict Prevention and Resolution, known as the CPR Institute, is a New York City membership-based nonprofit organization that promotes excellence and innovation in public and private dispute resolution, serving as a primary multinational resource for avoidance, management, and resolution of business-related disputes. The CPR Institute was founded in 1979 as the Center for Public Resources by a coalition of leading corporate general counsel dedicated to identifying and applying appropriate alternative solutions to business disputes, thereby mitigating the extraordinary costs of lengthy court trials. CPR’s mission is “to spearhead innovation and promote excellence in public and private dispute resolution, and to serve as a primary multinational resource for avoidance, management and resolution of business-related and other disputes.” CPR is a nonprofit educational corporation existing under the New York state laws, and is tax exempt pursuant to Section 501(c)(3) of the U.S. Internal Revenue Code. It is governed by a board of directors, and its priorities and policies are guided in large part by consultation with an executive advisory committee. Its funding derives in principal part from the annual contributions of its member organizations, and from its mission-related programming. The various operations and activities that fulfill the Institute’s mission are captured in the acronym of its name:

C: CPR convenes legal and business leadership to develop, and encourage the exchange of, best practices in avoiding, managing and resolving disputes.

P: CPR publishes its own work and that of other like-minded organizations, making resources available to a global community of problem-solvers.

R: CPR helps to resolve complex disputes among sophisticated parties, by devising rules, protocols and best practices, and by providing disputants with resources and consulting expertise in selecting appropriate methods and neutrals to assist in the dispute resolution process.

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