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Understand the Alternatives

 

What is Alternatve Dispute Resolution (ADR)?


ADR refers to a diverse range of processes that offer parties resolve disputes without a trial. In wider terms the following are the typical ADR processes:


Arbitration, Mediation, Negotiation, Conciliation.


These processes are acknowledged as the dispute resolution techniques. ADR is the most practical dispute resolution model. Disputes tend to develop over time and they are inevitable part of life. There are numerous reasons in the affirmative to adopt ADR process for resolution of disputes, but in reality the ADR model evolved from a negative source of dissatisfaction with the court processes. It is essential to consider the process of litigation as the final destination to resolve a dispute and not to be seen as the first step in an attempt to settle a dispute.

 

ADR Clause

 

This forms the part of an agreement wherein the contracting parties agree to attempt to resolve any disputes arising out of the contract by the use of ADR processes.

 

Arbitration

 

It is a very flexible out of court settlement for civil disputes. It is carried out by a neutral person, an Arbitrator. The Arbitration process has a less formal trial and evidence procedure. The process of Arbitration can be invoked by means of an Arbitration clause in the agreement between the parties. The parties are at will to choose either binding or non-binding Arbitration. In a binding Arbitration, the Arbitrator’s decision is final and in general there is no right of appeal limited to a few exceptions and in a non-binding Arbitration, the parties may opt for a trial if unsatisfied with the Arbitration process.

 

Mediation

 

This is a flexible process wherein a neutral person, a Mediator, is involved towards the working of a dispute or difference. The parties as such, have an ultimate control of the decision and the terms of resolution. Lately, with the advancement of international transactions, this method of resolution is considered as an appropriate method for resolving the civil disputes. It is basically structured by the influence of the third party neutral to assist in the resolution of disputes. In reality, the mediator does not make an award but purely recommends his views in consonance with the differences between the parties. The process of Mediation shall be as follows:

 

Facilitative: In this method, the Mediator facilitates the parties’ own efforts to formulate a settlement.

 

Evaluative or Directive: In this method, the mediator generally will assist the parties with third-party views on the merits of the case. Such evaluation is done on a request by the parties.

 

The legal framework for mediation is created by an agreement signed by the parties as there is not yet any Mediation Act to govern the process. A typical mediation agreement is embedded with the ingredients such as; the appointment of the mediator, good faith attempt to settle the dispute, dispute as to which the mediation is to be initiated, confidentiality process, good code of conduct to be followed by the mediator and finally settlement to be made in writing and signed by the parties. Unlike an Arbitrator, the Mediator has no power to impose the outcome of the mediation on the parties. The role of a mediator is broadly classified as a facilitator alone. The mediator can make recommendations which may not be binding on the parties.

 

Negotiation

 

This is the most common business dispute resolution method. The success of this process depends on planning and preparation. It is essential that the needs of the other party is well understood before commencing the process of bargain. This process involves intense planning and preparation to set out a clear strategy, as it is essential to reach a successful outcome.

 

Conciliation

 

This term is quite often misunderstood for Mediation. In reality, the powers of the conciliator will differ from that of a Mediator. The Conciliator in general may request the parties to submit a written statement on the nature of the dispute and the issues involved thereof. The Conciliator can as such make a proposal for settlement. He may set out the terms of the settlement apart from assisting the parties for settlement.