Difference between types of Alternative Dispute Resolution

Alternative Dispute Resolution, as the name suggests, is the method of solving a private/personal dispute outside the court of law. There are several advantages of ADR, which include speedy administration of justice, prevention of long waiting hours, self-paced process, client-friendly process, cost-effective process, and so on. ADR is the future of law. Actually, some commentators have cautioned that ADR is becoming not merely a supplement to adjudication but a replacement for it.[1]

In the paper: Thinking about ADR, Aufses, Arthur H. mentions that“ADR is any means of resolving a dispute outside of binding litigation in which the jury, court officers, and court facilities are financed by the taxpayers.”[2] He further mentions that the best process for considering the various ADR options is to rank them in the order of enforceability of its order.

A research was conducted by the [3]Assistant United States Attorneys (AUSAs) on the civil cases handled by ADR. According to the research with the use of alternative methods of dispute resolution 65% of cases settled compared to only 29% of cases when it was not used.With the proper utilization of the ADR techniques.

Types of ADR

ADR is an umbrella term used to denote the number of processes. Each of these processes had specific advantages. There are specific peculiarities in every type of ADR. For example, some techniques are law-driven, and some are client-driven. Some techniques have permission for the presence of counsel others have restricted access. In some techniques, the audience is not allowed to witness the proceedings in some of the audience is allowed.

Case evaluation, mini-trial, collaborative law, divorce coaching, and private judging are all types of ADR,  but Arbitration, Mediation, and Negotiation are the three techniques that are extensively considered and used under the ambit of Alternative Dispute Resolution.

• Arbitration: Arbitration is the process of dispute resolution where the parties agree to submit their dispute to an arbitrator (one or more), in the arbitral tribunal, which is always odd in number to settle their dispute. The parties agree to settle their dispute in a private, confidential environment through this process. The rent-a-judge technique, which was previously relevant, was the same as that of contemporary arbitration, only with minor differences.

Types of arbitration include- ‘ad-hoc’ arbitration, ‘baseball arbitration’ based on the choice of the arbitrator of the proposal given by different parties, ‘bounded arbitration’ where the parties fix a price which has to be considered by the arbitrator.

• Mediation: “Mediation is a process by which an impartial third person (sometimes more than one person) helps parties to resolve disputes through mutual concessions and face-to-face bargaining. The mediator does not force parties to settle their dispute but tries to convince them that they and their family will benefit from reaching an agreement. The mediator helps the parties understand what is happening to them. . . and encourages the parties to negotiate in good faith and to enter into arrangements that will be enforceable in future years.”[4]

One of the major differences between arbitration and mediation is that mediation is a client-driven process, and the mediator cannot force his will upon the parties. His presence is aimed at helping the parties reach a settlement with each other.

• Med-Arb: It is the hybrid version of mediation and arbitration. The position of the commanding authority is relevant in this context. The coordinator initially acts as a mediator, trying to facilitate negotiation in between the parties. Later in the stage, if the mediation is unsuccessful, then the coordinator acts as an arbitrator and has all the powers and functions of the arbitrator.
• Mini Trial: A mini-trial is a process of settlement of disputes. Mini-trial is mostly conducted in the post-litigation stage when the parties present the summarized case before a coordinator who intends to resolve the dispute. The coordinator can also act as a mediator, thus facilitating the process of resolution of disputes between the parties.
• Negotiation: Negotiation, as the name suggests, means discussion with the objective of solving the issue at hand, which is also called the negotiation problem. Negotiation is the process of dispute resolution between parties through mutual understanding and agreement where there is no involvement of the third party. A negotiation is a contemporary form of dispute resolution. It is a part of the ADR (Alternative Dispute Resolution) system of resolving disputes out of court.
• Conciliation: Conciliation is one of the methods of alternative dispute resolution (ADR), where a conciliator meets with the parties separately in private sessions and jointly and tries to ameliorate the dispute between them. The conciliator uses various techniques to solve the tension, such as counselling, encouraging to talk, and interpreting each other’s version, thus trying to cover up the differences in the process.
• Lok Adalats: Lok Adalats is based on the model of a court. Lok Adalat ensures the speedy disposal of cases in the pre-litigation stage. Lok Adalat is often used by MNCs to settle their disputes with a large number of clients. The provision of Lok Adalat is given in the Legal Services Authorities Act 1986. Here the parties, along with the counsels, are brought before a bench of judges. The jury decides on the case and gives an award. The award is binding to the parties.

Difference between Types of ADR

There are various ways in which the categorization for the differentiation of the type of ADR can be undertaken. Some of them are as follows.

1. Presence of Code

The types under ADR can be differentiated on the basis of the presence of guidelines. Guidelines mean the set of rules of procedure authorized by any competent authority to be followed while undertaking the process. The presence of different guidelines like the UNCITRAL Model Law on International Commercial Arbitration, ICC rules on Arbitration or even statutory laws such as the Arbitration and Conciliation Act 1996 differentiates Arbitration from the rest of the methods of ADR.

Mediation does not have any formulated guidelines but has set standards of ethics that one is required to follow. Negotiation is completely dependent on the clients. Lok Adalat gives great freedom to the presiding judges to decide on the method and the process of Lok Adalat. A few clauses regarding the establishment of Lok Adalats are enshrined in the Legal Services Authority Act of 1987.

2. Presence of Procedural Law

A major stick for differentiating between the different types of ADR is finding out whether the type is a law-driven process or a client-driven process. Arbitration is a law-driven process, where the procedure is mentioned in several statutes and guidelines, and mediation and negotiation are client-driven processes.

There is a process to be followed in the process of arbitration, from the selection of the arbitrator to the creation of the arbitral award; everything is according to a set of rules and procedures.

On the contrary, in mediation, the mediator is the moderator of the procedure. While in negotiation, the parties are given prime importance, the parties decide the venue and the time. The process is based on their preferences. Client counselling, on the other hand, depends entirely upon the counsel.

3. Position of the Coordinator

The moderator of the process of ADR has to be a virtuoso in legal studies and practice. The coordinator is sometimes called the arbitrator, sometimes the mediator and sometimes a judge according to a type of ADR. The strength of the team of moderators may also vary from time to time. In arbitration, the strength of arbitrator(s) is always odd in number for the purpose of maintaining neutrality.

The arbitrator follows the law and presents the arbitration award, which is equivalent to an order by the civil court. On the other hand, the role of the mediator is to facilitate the negotiation between the parties, thus helping them reach a settlement. Unlike the arbitrator, the mediator cannot interfere and suggest ways to settle disputes. Mediators act as catalysts to speed up the process of discussion between the parties.

In conciliation, the conciliator can suggest and help in the resolution of disputes. In med-arb, the moderator acts as a mediator initially and later as an arbitrator. Additionally, the qualifications of the coordinator are of prime importance in the process. The qualification decides the kind of cases the coordinator would behandling. Several organizations like the PCA, ICC, etc recruit such persons as chartered arbitrators.

4. Position of the Parties

The position of the parties in a dispute is often the thing that differentiates the different types of Alternative Dispute Resolution methods. In some types, the parties are given more importance, while in the other type, the coordinator is vested with all the powers.

In arbitration, for example, the arbitrator decides the merits of the case, and hence the arbitrator is given greater power over the parties. Whereas in a negotiation process, the parties are vested with all the powers. They decide the venue, time, and process and finally agree on their own.

In a mediation process, the position of the mediator is subordinate to that of the parties. The mediators are often relegated to silent observers in mediation. The interest of the parties is given prime importance in all types of ADR. In Lok Adalat, the parties do not get to decide on the venue of the place.

5. Genre of Cases

The ambit of cases covered by the different types of ADR is also sometimes an area of differentiation. For example, mediation ranges from marital to workplace-related issues. Arbitration mainly deals with commercial and business issues. Negotiation ranges for varied subjects and has a varied scope. Local Lok-Adalats deal mostly in cases of telecom and finance where the corporations try to settle their disputes in one go. Panchayats have wide jurisdictions, from civil to criminal cases.

Despite all the major differences, all the types of ADR are party-specific and were introduced to establish a win-win position between the parties in the shortest amount of time. Thus theoretically there might be differences but practically the objective and the intent of all the types are one and the same.

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[1] Rosenberg, Joshua D., and H. Jay Folberg. “Alternative Dispute Resolution: An Empirical Analysis.” Stanford Law Review, vol. 46, no. 6, 1994, pp. 1487–1551. JSTOR, www.jstor.org/stable/1229164.

[2] Aufses, Arthur H. “Thinking About ADR.” Litigation, vol. 16, no. 3, 1990, pp. 33–57. JSTOR, www.jstor.org/stable/29759398.

[3] Legalstudiesms. “Types of Alternative Dispute Resolution Processes.” Online Legal Studies Programs, Online Legal Studies Programs, 21 June 2019, legalstudiesms.com/learning/types-alternative-dispute-resolution-processes/.

[4] Weingarten, Helen R. “Strategic Planning for Divorce Mediation.” Social Work, vol. 31, no. 3, 1986, pp. 194–200. JSTOR, www.jstor.org/stable/23713195.

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