ADR
Alternative Dispute Resolution
Alternative Dispute Resolution – ADR facilitates the resolution of a dispute without its parties needing to recourse to litigation.The basic forms of ADR are:
- Negotiation,
- Mediation and
- Arbitration.
WHY CHOOSE ADR?
In recent years ADR is globally constantly on the rise. The main reasons for this are:
Effectiveness
ADR is the response to the ineffectiveness and inefficiency of court systems and time-consuming, costly and inconclusive litigation. For this reasons, there are efforts to include ADR in the existing system, frequently as part of the preliminary judicial process, aimed at eliminating the problem of court congestion.
Reduced costs
As a rule, the cost of ADR methods is much lower than the total expenses involved for the planning, organisation and realisation of litigation with a minimum of two degrees of jurisdiction (legal fees, court expenses, judicial stamp duty, possible fees for technical experts – consultants, expenses relating to collecting evidence, affidavits, cost of summons and services, etc.).
Reduced risk
ADR has typically a lower risk factor than that of a trial, since one can never secure or anticipate confidently the outcome of a trial.
Privacy
Alternative dispute resolution procedures are private. On the contrary, litigation is public, minutes are taken, while secrets and scandalous information and testimony is frequently revealed and discussed in order to dominate over the other party. This information on the dispute may end up published in the press or posted on the Internet. This is another reason why ADR is frequently chosen by parties who wish to resolve their dispute while maintaining their reputation intact and safeguarding their trade, or other, secrets.
THE KEY METHODS OF ADR
Negotiation
Two or more parties to a dispute meet, identify and discuss the issues that are troubling them, present the facts and reach a mutually acceptable solution. The distinguishing feature of a negotiation is the absence of a “third party”. A negotiation is strictly between the parties concerned. As it requires the collaboration of the parties, negotiation is recommended in cases where the parties are able and willing to converse from the beginning.
Mediation
Mediation is a negotiation supported by a third party, the impartial mediator, who, being neutral with respect to the dispute and equipped with the appropriate knowledge and skills, can help the parties realise their needs and the strong and weak points of their “position” in the dispute, thus leading them to its resolution.
Arbitration
This is the most structured of all ADR methods and according to arbitration, the concerned parties are initially free to choose their arbitrator(s), the place, time, procedure and language for the procedure, as well as the applicable law. The third (impartial) arbitrator (judge) will issue a binding for the parties decision on the dispute, which generates a precedent and is enforceable.
ARE ADR METHODS SUITABLE FOR ALL DISPUTES ?
Certainly not. To begin with, ADR relates to private disputes. ADR methods may constitute a faster alternative to the judicial process, however, certain violent or urgent conditions may require direct court intervention (e.g. the taking of interim protective measures). In some other cases, the parties may be interested in generating a legal precedent for future similar disputes. In such a case, only a court ruling would facilitate this objective, since ADRs are only binding for the particular case for which they were reached, with its particular factual elements and specific concerned parties. ADRs are also not recommended if one side is not really interested in resolving the dispute, but simply wishes to delay and or avoid fulfilling its obligations.
Despite the limitations above, ADR remains the most appropriate alternative in many cases, since it focuses on the future (after the resolution of the dispute), offering in parallel to the parties the opportunity to place an important, even determinative, role (depending on the method and procedure to be followed) in the resolution of their dispute at a shorter time and less (comparatively) cost.
