1.Introduction
Alternative dispute resolution (ADR) refers to any method of resolving disputes without resorting to litigation in a court of law. ADR encompasses various processes and techniques for conflict resolution not overseen by a governmental authority, including mediation, arbitration, conciliation, negotiation, and other methods suited for different types of disputes. These processes enable parties to find solutions outside the traditional court system and may follow different rules, mutually agreed upon by the parties involved. ADR techniques vary in formality and in how decision-making power is allocated. In arbitration, the decision-making power lies with a neutral third party, whereas in mediation, the decision-making power remains with the disputing parties at all times. These processes are generally confidential, less formal, less stressful, less time-consuming and more economical than traditional court proceedings.
2.History of ADR
The term “alternative dispute resolution” was first formally used in 1976 by Frank Sander in his paper Varieties of Dispute Processing, which he presented at the Pound Conference in 1976. Sander wrote his paper to propose different techniques to reduce the burden on courts, which were becoming overstretched by an increasing number of new cases. Courts were concerned that, due to this congestion, justice was not being properly served. In response to rising court costs, delays, and congestion, as well as the need to facilitate justice and provide more effective methods of dispute resolution, the ADR phenomenon was born. However, this modern innovation is not entirely new, as the processes that comprise ADR have been in use in different parts of the world under various names for millennia. Evidence of English people holding informal courts resembling arbitration panels to resolve private disputes dates back as early as 1066. Similarly, the panchayat and jirga systems in South Asia are centuries old and share similarities with both mediation and arbitration.
Arbitration in international commercial disputes has been used to settle interstate conflicts for centuries, especially with the advent of European global maritime trade and colonialism in the 18th and 19th centuries. Other methods were developed over time for specific types of disputes, such as construction adjudication to settle construction-related conflicts and online dispute resolution (ODR), which uses internet infrastructure to resolve disputes without requiring parties to be physically present at a venue, further reducing the costs and time required by ADR mechanisms.
3.Key Features of ADR:
ADR has several features that distinguish it from litigation and make it a viable alternative to in-court adjudication of disputes. These key features are:
- Confidentiality: ADR is confidential unless the parties agree otherwise. This means that sessions are held in private and are not reported to the public, unlike judgments pronounced by the courts. This can be particularly useful if a matter is sensitive, for example, for commercial reasons. Parties may want to keep the dispute and its settlement private to prevent damage to their reputation and social and financial prospects.
- Flexibility: ADR is flexible as it is not typically bound by the same rules in the same way that a court or tribunal would be. However, some forms of ADR, such as arbitration, are subject to rules agreed upon by the parties. Parties are usually free to decide the rules that will govern the settlement of their dispute according to their convenience.
- Subject Matter Expertise: ADR is usually conducted by a subject specialist; for example, a housing matter would be dealt with by a housing expert, and a commercial matter by a commercial expert. This means that the person handling the case has a good understanding not only of the subject but also of the realities and practicalities of that area.
- Solution Focused: ADR is focused on resolving the issue and how the parties can address it and move on, rather than what has already happened and apportioning fault or blame as the determination of right and wrong could cause more damage. That’s why it has been criticized to overlook fairness and justice in favour of a workable solution.
- Participation of Parties: Parties to ADR can actively participate in the process and mostly get to make the final decision, sometimes facilitated by an intermediary. In contrast, in courts or tribunals, the process is usually conducted by legal professionals on behalf of the parties, and the decision is made for the parties, often with only limited involvement or understanding.
