What ADR scheme to use?
There are many types of alternative dispute resolution (ADR) schemes available. But before you decide on a particular scheme, you must consider the following issues: Is ADR the most suitable way of resolving your dispute? Is your opponent or the other party willing to have the matter decided or resolved through ADR? If so, what ADR scheme do you think they may prefer?
Furthermore, you need to decide what your expected outcome is or what you intend to achieve by using ADR. For example, besides resolving a dispute, you may also want public awareness in respect of an injustice in your matter. As ADR is usually confidential the public element may not be open to you. Consequently you may prefer the courts.
There are five basic categories of ADR schemes. These are also used in conjunction with a range of ADR methods. The five categories are arbitration, mediation, negotiation, conciliation, and the Ombudsman scheme.
Arbitration
In arbitration, a neutral party (the arbitrator) reviews evidence, hears arguments, and makes a decision (award) to resolve the dispute. This is very different from mediation, where the mediator helps the parties reach their own resolution.
Arbitration normally is more informal, much speedier and less expensive than litigation. Because of the large number of cases awaiting trial in many courts, a dispute normally can be heard much more quickly by an arbitrator than by a judge.
Often a case that may take a week to try in court can be heard by an arbitrator in a matter of hours, because evidence can be submitted by documents (like medical reports and bills and business records) rather than by testimony.
After considering each side, the arbitrator issues a final and binding decision called an award. This award usually tells the parties how the decision was reached and why one side was successful and not the other. There is very limited right to an appeal against an arbitrator’s award.
A party who does not like the award may file a request for trial with the court within a specified time. However, if that party does not do better in the trial than in arbitration, he or she may have to pay a penalty. In Ireland the arbitration process is governed by legislation.
Arbitration is best for cases where the parties want a decision without the expense of a trial. Arbitration may not be a good idea when the parties want to resolve their dispute by themselves, or with the aid of a neutral person.
Mediation
In mediation, a neutral party (the mediator) assists the parties in reaching a mutually acceptable resolution of their dispute. Unlike litigation or some other types of ADR, the mediator does not decide how the dispute is to be resolved; the parties do.
Mediation is a co-operative process, in which the parties work together toward a resolution that tries to meet everyone’s interests, instead of working against each other in a situation where at least one party losses.
Mediation normally leads to better relations between parties and to resolutions that hold up. For example, mediation has been very successful in family disputes, particularly with child custody and visitation.
This method is particularly effective when the parties have a continuing relationship, like neighbours or business people. Mediation also is effective where personal feelings are getting in the way of a resolution. This is because mediation normally gives the parties a chance to let out their feelings and find out how each other sees things.
Mediation may not be a good idea when one party is unwilling to discuss a resolution or when one party has been a victim or the other or cannot have enough bargaining power in the mediation.
However, mediation can be successful for victims seeking restitution from offenders. A mediator can meet the parties separately when there has been violence between them.
To be continued...
Femi Daniyan is a barrister and founder/president of the Afro-Irish Organisation, a human rights organisation.
