Disputes arise in either business or personal settings whenever individuals or groups don’t agree and can’t seem to find a common ground. In such cases, going to court or litigation is not the only option, especially since filing a lawsuit can be a tedious, lengthy, and costly affair.
The other option is alternative dispute resolution (ADR), which is a confidential method of settling legal disputes without having to go to court. Aside from this, ADR offers the following advantages:
- It is less time-consuming compared to going to trial.
- It costs a lot less than litigation.
- It offers a degree of flexibility in terms of choosing what rules apply to the dispute in question.
- It gives the disputing parties the option to have their dispute mediated or arbitrated by an expert who is well-versed with the technicalities or complexities of the case.
Different alternative dispute resolution methods
There are different methods under ADR. The most common ones are conciliation and mediation, arbitration, and adjudication.
1. Conciliation and mediation
Both conciliation and mediation involve the participation of a third party (an independent, trained conciliator or mediator) in resolving a dispute, achieving a settlement, or reaching an amicable agreement between or among the disagreeing parties.
In conciliation, the conciliator plays an active role in the dispute resolution process by being tasked to evaluate the dispute, including the arguments of either side. The conciliator is expected to come up with a recommendation or propose a solution to end the conflict. Conciliation is generally used in employment disputes and is a compulsory process before individual claims are brought before employment tribunals where these independent judicial bodies exist.
The mediation process is facilitated by a mediator with the end goal of arriving at a settlement or resolution. The role of the mediator, then, is to ensure that the disputing parties are communicating and to help them find a solution by themselves. Most non-criminal disagreements can be successfully mediated, including cases of verbal harassment, family disputes, landlord-tenant problems, and neighborhood disagreements.
When it comes to arbitration, a nominated qualified third party is tasked to handle the dispute resolution process. The arbitrator is a professional who is selected by the disputing parties based on expertise and technical or industry knowledge.
An arbitrator could be a senior lawyer, a retired judge, accountant, engineer, and so on. The disputing parties present their cases before the arbitrator (much like in regular court proceedings), and lawyers are given opportunities to probe witnesses from both sides. In the end, the arbitrator gives a legally binding decision that all opposing parties must honor and adhere to.
People usually resort to arbitration in any of the following scenarios:
- There are disagreements regarding the appropriate jurisdiction.
- The dispute is of a highly specialized or technical nature so that only an expert or specialist can efficiently render judgment.
- The disputing parties involved (or one of them) want a final verdict with no chance of an appeal.
- The parties involved want privacy and confidentiality.
- Most or all parties involved in the dispute agree on arbitration to save time and money.
One of the main differentiators between adjudication and the other ADR methods is that the former is usually applied to disputes arising from construction contracts. This formal process involves an arbiter or judge who is tasked to review the evidence and argumentation (including legal reasoning) presented by the disputing parties. After everything has been presented, the adjudicator arrives at a decision to determine the rights and obligations between the disputing parties.
An adjudicator is a nominated professional who is impartial, unbiased, and always fully qualified. They may be a seasoned construction professional or a construction lawyer, and are, therefore, expected to have the background and expertise to render a final, legally binding decision in adjudication cases.
Depending on your case or dispute, make sure you partner only with trusted professionals who can successfully facilitate alternative dispute resolution methods so you need not go through a costly, time-consuming court process.