Alternative dispute resolution
Alternative dispute resolution (ADR) encompasses various methods for resolving civil disputes outside the traditional court system, thus avoiding litigation. Common ADR techniques include mediation, arbitration, negotiation, conciliation, early neutral evaluation, and summary jury trials, with mediation and arbitration being the most frequently utilized. ADR gained traction in the United States during the 1980s as a response to the rising costs and lengthy timelines associated with court trials. By the early 21st century, it emerged as a widely accepted approach for resolving conflicts more efficiently and economically.
Mediation involves a neutral third party who facilitates communication between disputing parties without imposing a solution, making it suitable for those willing to collaborate. In contrast, arbitration requires parties to submit their dispute to an arbiter, who makes a binding or nonbinding decision. Other methods, such as conciliation and early neutral evaluation, provide opportunities for parties to negotiate resolutions or assess the strengths and weaknesses of their cases, respectively. Overall, ADR offers a quicker and more cost-effective alternative to litigation, making it a popular choice for various civil disputes, from personal matters to business conflicts.
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Subject Terms
Alternative dispute resolution
Alternative dispute resolution (ADR) is any means of resolving civil disputes between two parties without resorting to litigation (i.e., lawsuits). ADR methods include mediation, arbitration, negotiation, conciliation, early neutral evaluation, and summary jury trial, of which the most common are mediation and arbitration. ADR gained popularity in the United States starting in the 1980s as a way of dealing with the increasing time and expense of court trials. By the early twenty-first century, it had become a very common way of resolving disputes more quickly and cost-effectively than could be done through the court system.
Overview
Mediation is a process in which two parties to a dispute hire a neutral mediator, rather than each party hiring a lawyer, to help them resolve their disagreement. The mediator does not decide the issue; rather, he or she merely provides a forum for the parties to meet, helps them identify common ground, and keeps them talking. The mediator may take the parties through a series of confidence-building measures, getting them to agree on small matters before building up to resolving larger areas of disagreement. Mediation is a good option for parties with some ability to work together. It does not work if one or both parties are unwilling to negotiate or compromise.
While mediation helps the parties to a dispute work out their differences themselves, arbitration involves submitting the dispute to a neutral arbiter who then works out a resolution and presents it to the parties. Arbitration is like a stripped-down, less formal version of a trial. It can be either binding or nonbinding. In a binding arbitration, the parties agree to accept the arbiter's resolution, whatever it is, and cannot go to court if they are unhappy with the result. In a nonbinding arbitration, either party can choose to sue if dissatisfied with the resolution. Arbitration has become the dispute resolution method of choice for labor-management disputes.
Negotiation is the most basic form of dispute resolution, wherein the parties simply agree to come together and try to work out their differences, sometimes with the help of professional negotiators. Negotiation and mediation allow parties the maximum amount of control over the outcome of a dispute, rather than having an agreement worked out for them by a third party such as an arbiter or a judge.
Conciliation is similar to mediation, but the parties to the dispute typically do not meet face to face. Instead, they submit their claims to a conciliator, who then works on obtaining concessions from each party, starting with minor issues and working up to major ones in hopes of obtaining a final agreement from both parties.
In early neutral evaluation (also known simply as “neutral evaluation”), the parties to a dispute submit their claims to a neutral evaluator, usually a lawyer or a subject-area expert, and the evaluator gives an opinion about the relative strengths of each side in the dispute. This can give the parties a more realistic view of their positions before they decide whether to go forward with a lawsuit.
A summary jury trial is a stripped-down version of a trial in which the parties to a dispute present their cases to a jury, which then issues a nonbinding advisory opinion. This is similar to early neutral evaluation in that both methods allow the parties to get a sense of the strength of their respective cases before deciding whether to pursue litigation or to resolve the dispute between themselves.
ADR techniques can be used in all manner of civil disputes, from divorce to business disagreements. There is great incentive to pursue ADR, as it can resolve disputes in a fraction of the time and for a fraction of the cost of pursuing formal litigation. Business contracts often contain built-in provisions for ADR, stipulating ahead of time that any future disputes that may arise will be resolved via arbitration or some other form of ADR.
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