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Alternative dispute resolution

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"Alternative Dispute Resolution ("ADR") refers to any means of settling disputes outside of the courtroom."[1] 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.

Mediation

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, or set precedent.

Past ADR decisions or even formal case law may be resources used by the ADR process, but the situation is often case-by-case. The role of precedent is controversial for ADR. The Australian Human Rights Commission suggests that the ADR process may be guided by existing precedent, but does not necessarily make it.
A more facilitative approach to resolution is likely in situations where resolution is attempted at an early stage of the complaint process when the issues in the complaint may be ill-defined and the merit of the complaint unclear, or at latter stages when the evidence in relation to the dispute is equivocal. In contrast, a more advisory approach to resolution may be adopted where early in the process there is a strong prima facie case and relevant case precedent... [2]
Several sources argue against ADR being used to set precedent when contractual matters are involved.
An advocate in a labor arbitration forum, therefore, is not looking for decisions that would constitute precedent in the pending arbitration proceeding, but rather for decisions that might have persuasive authority because of their analytical power[3]

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. Some organizations believe ADR is not appropriate when precedent or policy needs to be set. [4] 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.

An advocate in a labor arbitration forum, therefore, is not looking for decisions that would constitute precedent in the pending arbitration proceeding, but rather for decisions that might have persuasive authority because of their analytical power.

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

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.

Types of facilitators

Facilitators are not necessarily attorneys, although they will typically have some legal knowledge. ADR facilitators for family law, such as divorce or child custody, often have their primary training in a counseling discipline, or other backgrounds that helps them deal with what may be major emotional complications. ADR for professional disputes, where the nature of the dispute may be quite technical and not easily understood in a court system, often are respected members of the profession, perhaps as a panel including general citizens or experts in relevant doctrines.

For ADR to work, the facilitators must be respected, unafraid of asking hard questions, and they must avoid the slightest appearance of conflict of interest. In many ADR procedures, especially when the facilitators are attorneys, they are absolutely forbidden, by professional ethics, from representing any party in an adversarial process. Depending on the jurisdiction and its rules, the facilitators may even be exempt from testifying in an adversarial procedure, although if there was a written recommendation from an arbitrator or mediator, it may be admissible as evidence.

References

  1. Cornell Law School
  2. Tracey Raymond (2006), "Alternative Dispute Resolution in the Human Rights and Anti-Discrimination Law Context: Reflections on Theory, Practice and Skills", Australian Human Rights Commission
  3. Suzanne Thorpe and Laura J. Cooper (October 23, 2004), "Features - Researching Labor Arbitration and Alternative Dispute Resolution In Employment", LLRX.com: Law and technology resources for legal professionals
  4. U.S. Equal Opportunity Commission, Equal Employment Opportunity Commission's Alternative Dispute Resolution Policy Statement