Friday, 8 February 2013

ADR (Alternative Dispute Resolution)


a.)         ADR (Alternative Dispute Resolution) acts as a technique and process between disagreeing parties in order to come to an agreement between one and other. In recent years ADR has increasingly been accepted by both the general public and the legal profession as some courts require both parties to result to ADR of some type usually mediation before going ahead and presenting the case to be tried. There are many benefits to using ADR; however there are also disadvantages to using ADR as well. Some of the advantages of ADR include: being able to have more control over the particular issue in which involves the people that are being affected by this issue, this then leads to being less costly as opposed to presenting this issue to the courts which would then cost both parties money as they have to find a lawyer to help resolve their case. Also, ADR is less time consuming as there is less of a delay with ADR because there are fewer procedural and scheduling delays because the issues are being controlled by both parties. Also, ADR is less distractive to a corporation’s directors, managers, as well as their employees as they don’t have to go through a process of preparing to testify as well as preparing information. However, some of the disadvantages of ADR include: ADR does not have full disclosure, as a mediator cannot ensure that the information that has been revealed by both parties are relevant. The court system does provide both parties with safeguards and rules in order to ensure that each party has a fair hearing. Unlike ADR, this technique has few rules and procedures which would not be able to provide the proper assurance to either side compared to the court system. ADR includes many techniques such as: mediation, negotiation, and arbitration.


      Mediation involves bringing in a neutral third party that is properly trained, in which this individual would help assist both parties to reach a mutual agreement. The mediator does not make decisions for both parties; the mediator is responsible for facilitating the discussion in order to make sure that each party has an equal opportunity to express their side in regards to the particular issue. Also the mediator identifies the problems and solutions to the issue encouraging a settlement between parties as well as finding different ways that both parties can try and compromise. Mediation is most commonly used in family disputes.  In a case like this a mediator comes in to try and help both parties by coming up with various solutions in which both parties can use in order to help resolve the problem.


     Negotiation on the other hand, involves both parties or their representatives are able to meet and discuss the problem with the common goal to try and come up with an agreement in order to resolve the issue. For example, I know some teachers are more then willing to negotiate with the students to try and extend a due date for a particular assignment because they know and understand that the due date of their assignment is on a week that’s really busy for them for all their other classes. Therefore, the teachers are willing to come to an agreement with the students to extend the due date of the assignment and postpone it to a later date.


      Arbitration on the other hand is a more formal compared to both negotiation and mediation, where this is where a third party member is voted by both parties to come in and make a final decision between both parties. For example, in terms of your job you may have a dispute with your co-worker, at this point your boss may come in to make a decision between the issue between you and your co-worker and make the final decision about which co-worker was at fault in regards to the issue. To conclude, the difference between ADR and litigation is litigation deals with the courts taking care and making a decision between two parties; Whereas ADR involves a process for both parties to use in order to come with an agreement without having to take the dispute to the courts where it is a longer and more expensive process.  


b.)          After researching information about ADR it poses a question in my mind where I wonder why people take issues to the courts if ADR is a much faster and cheaper process to go through. I have learned that based on this question even though yes ADR is a much cheaper and faster process to go through, it’s not necessarily the best way to go about resolving an issue as opposed to bringing the dispute to the courts (litigation). My reason behind that is because the courts have more power to relevant information, also the courts can ensure a fair process, where ADR doesn’t necessarily ensure both parties to go through a fair process. In addition, the courts follow precedent cases (stare decisis) where there are public records of previous disputes or decisions. Last but not least, by taking disputes to the courts, you know that the resolution that is made to the problem is enforceable because the judge is responsible for the laws that are set out as conduct for society.  


c.)          As a result to ADR, if I was ever faced with a situation where I felt like I wasn’t successful in using the various different problems to help resolve a dispute such as: mediation, negotiation and arbitration, then I would then take further action and bring the particular dispute to the courts where I know that the situation will be resolved. Even though this process may take longer and is more costly, if you know that there is no solution to your problem between both parties after trying to use various different processes, then that is when both parties need to present the dispute to the courts for further action.   



  1. Hi Michelle you have made some very good points in your ADR blog. I agree with you in a lot of your ideals. ADR is much faster and cheaper and like you said the down fall is that not all information is disclosed when dealing with Negotiation, Mediation and Arbitration. This may propose some frustration on the “honest” parties side when not all details and specifics are brought to the bargaining table. Your right after facing a certain period when going through the steps of ADR the court system is your last resort but it is binding. I feel that companies should lean more towards ADR just because it can leave more time for themselves and the people involved to spend less time focusing on the issues and just resolve it so they can be more productive in their jobs. This shows good negotiation skills, communication and business skills which I think are needed when running a successful and profitable company.

    Tanya :)

  2. Hey Michelle!
    Well said. I can definitely say you took your time with your readings and explained all three of the ADR methods in three very detailed paragraphs. About your question related to why people go to court instead of using ADR, I believe that some cases are very "one sided" as in only one party is right and the other is definitely wrong so they wouldn't want to negotiate or go through mediation or arbitration because the one party that was harmed wants the harming party to be punished and get what deserve in their eyes. Although with courts it could be unfair as well since they might end up using a previous case similar to the one they're dealing with and make a decision off of that. This decision could turn out to be the wrong decision so it all depends on the case. Once again, great post Michelle and thanks for the detailed information.