Alternative Dispute Resolution (ADR) is a way of resolving disputes out of court. ADR usually involves negotiation between people in dispute, with or without the help of a neutral third person. People can therefore use ADR as a way of solving problems themselves.
ADR includes direct unassisted negotiation between people, lawyer to lawyer negotiation, mediation, conciliation, expert appraisal, expert determination and arbitration. A common feature of these processes is that the people in dispute have control over the process and the outcome. That is, a decision is not imposed on them unless they agree in advance to be bound by the determination of a third party.
ADR encourages those in dispute to work out their interests and needs and explore creative ways of finding solutions which meet those needs. Even where people have different needs and interests it is sometimes possible to satisfy them all without having to compromise.
Sometimes people become involved in disputes which, although very important and worrying to those concerned, are better resolved outside the comparatively expensive court system. Some disputes do not have a legal solution, while others may be made worse by court action. There are a number of advantages of Alternative Dispute Resolution in general (and mediation in particular) over litigation:
- it is usually faster and less costly
- people have a chance to tell their story as they see it
- it is more flexible and responsive to the individual needs of the people involved
- it is more informal
- the parties' involvement in the process creates greater commitment to the result so that compliance is more likely
- the confidential nature of the process
- Alternative Dispute Resolution is more likely to preserve goodwill or at least not escalate the conflict, which is especially important in situations where there is a continuing relationship.
This is the process whereby people in dispute simply get together to talk about the problem and try to find a solution which they can live with.
Where each party has a lawyer they may choose to have them negotiate on their behalf. Lawyers will give clients advice on their legal rights and obligations and clients may then instruct their lawyers to negotiate within certain guidelines.
Mediation usually involves people meeting face to face in the presence of a neutral third person. This person listens to each party, helps them identify their real interests and needs and then the parties negotiate a settlement which will meet those needs. The mediator does not take sides, give legal advice or impose a solution. Mediators assist people by managing the negotiation process, helping people listen to each other and keeping them on track.
Mediation is used to successfully resolve many community, family, tenancy, commercial, building, workplace, industrial relations and environmental disputes. There is no limit to the types of disputes in which mediation may be attempted, although it is more suited to some disputes than others, see advantages of alternative dispute resolution and when not to use alternative dispute resolution.
In South Australia, the practice of co-mediation (that is, two mediators for each mediation session) is common in disputes between neighbours and family law matters. Co-mediation can provide gender balance and quality control, and is also seen by some as improving fairness.
Shuttle mediation is possible where people want to negotiate but are not comfortable meeting face to face. In this situation, the mediator can act as a go-between. Shuttle mediation is generally used only as a last resort as it extends the time taken for mediation and is rarely as good as direct communication between the parties.
People may often be told to seek legal advice before mediation, on the principle that it is better to negotiate from a position of knowledge rather than from ignorance. Once people are aware of their legal rights, they can then choose whether or not to enforce them.
Anyone can act as a mediator, although it is much better to use someone who has been trained in the process and is aware of what works and what doesn't.
There is no single definition of conciliation and the role of a conciliator may vary according to the context in which they are working. The process is similar to mediation, although conciliators are often seen as being more interventionist. Conciliators may contribute their own views and opinions during the conciliation process and often the options for settlement will be restricted by legislative requirements.
This is a process in which an expert, chosen on the basis of his or her knowledge of the area in dispute, investigates the dispute and provides advice as to the facts of the dispute and possible, probable or desirable outcomes and how these may be achieved.
Expert determination is a process in which the parties to a dispute present arguments and evidence to a neutral third person, chosen on the basis of their specialist qualification or experience in the area of the dispute, who makes a determination. The parties agree on who the expert will be and agree to accept their decision.
Arbitration is similar to going to court, but is generally less formal and slightly quicker. Parties get to choose the arbitrator(s) who is often an expert in the area of dispute. The arbitrator hears evidence and arguments on both sides and then imposes a decision on the parties in dispute. The arbitrator's decision may be legally binding on both parties.
Alternative Dispute Resolution (ADR) works best when people in dispute are prepared to adopt a co-operative approach to problem-solving. Where one or both people are not prepared to do this, ADR may not be the best option. Similarly, if one person is fearful of the other or for some other reason is unable to freely put forward their needs and interests then, depending on the process being considered, ADR may not be their best alternative. Your ADR practitioner will usually have a preliminary meeting with you to determine whether or not ADR is appropriate, and you can raise any concerns that you may have then.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.