Alternative dispute resolution

"'''Alternative Dispute Resolution ("ADR") refers to any means of settling disputes outside of the courtroom." There are a variety of ADR methods, but all begin with neutral facilitator(s) who starts by defining the nature of the grievance of each party. Some disputes may, at their core, misunderstandings, and a neutral explanation of the other party's concerns may be all that is necessary to resolve the problem. There may even be situations where the original parties discover they are in basic agreement, but that they do have a dispute with a third party, or perhaps a rule or policy. Especially in the latter case, the most beneficial result comes when the person or organization who created the policy has the concerns presented, recognizes the policy has a fault, and corrects it. Such an outcome is the sort of "win-win" outcome that is alien to the essentially adversarial process of common law based on Anglo-Saxon traditions.

Not all cultures have an adversarial legal system, so what a person familiar with common law may consider "alternative" is basic to a different cultural concept of law. In many cultures and situations, when the definition process recognizes that there truly is a dispute, the process of mediation is the next step. One or more mediators hear the points of each side, and attempt to work out a compromise position that is acceptable, if not ideal, to all sides. Again, when the dispute relates to contracts, organizational policy, or other systems less formal than legislation, there may be a conflict-producing aspect of those rules, and the rulemaking authority may change them to avoid future disputes. In such cases, the aggrieved party's concerns and suggestions may become part of a longer-term, more extensive revision of rules.

Whether or not the results of ADR are recorded, perhaps without identifying the participants, so it might be used in guidance for future dispute resolution, depends on the ADR process. Within the common law, there is a doctrine of stare decisis, also called precedent or case law, that records court decisions that interpreted ambiguities in the law. Past ADR decisions or even formal case law may be resources used by the ADR process.

A similar negotiation process, in fact, can be part of formal lawmaking. For example, the two chambers of the U.S. Congress, or any other bicameral legislative body, may pass slightly different versions of a law on the same topic. The U.S. tradition here is to convene a conference committee, with equal representation from all chambers and perhaps all, or a majority, of political parties, to work out acceptable compromise language before the bill is sent to the President for signature.

Arbitration is a more formal process than mediation, in that the facilitators have more authority than mediators. An individual arbitrator, or a panel, will hear disputes, often more informally than would a court of the same jurisdiction. The arbitrator(s) then develops what, in the opinion of the arbitrator(s) and possibly neutral experts, is a fair solution to the dispute. In binding arbitration, the parties have, prior to the start of arbitration, agreed to accept the decision of the arbitrator. In nonbinding arbitration, parties may either have an appeal step within the arbitration process, or may take the dispute to the formal court process.