When used appropriately, alternative dispute resolution helps parties in a dispute come up with flexible and creative solutions that preserve relationships, reduce stress and keep disputes private. Considering all the benefits of ADR, it’s no surprise that demand for arbitrators, mediators and conciliators is projected to grow faster than the average for all occupations over the next decade, according to the Bureau of Labor Statistics (BLS).
There are various types of ADR, and sometimes different names are used for similar processes. According to the United States Agency for International Development and the Office of Conflict Management and Mitigation, the main characteristics of ADR processes are:
- Informality – Fundamentally, ADR is much less formal than courtroom proceedings. This informality is appealing to people who may be intimidated, overwhelmed or exhausted by more formal judicial systems and processes. The informal nature of ADR also helps speed up proceedings and reduce the cost for those involved.
- Application of Equity – ADR cases are decided by a neutral third party or negotiated by disputants themselves rather than on uniformly applied legal standards. While this means ADR systems cannot establish legal precedent, the application of equity rather than the rule of law preserves the substantive and procedural fairness of dispute resolution.
- Participation and Communication – Successful ADR depends on participation and communication between disputants. By facilitating dialogue, ADR systems inherently provide more opportunities for reconciliation and more flexibility in designing creative settlements.
If you’re thinking about becoming an ADR practitioner, there are different types of ADR you can choose to practice. This list, though not exhaustive, is a good place to start if you wish to learn more about the types of ADR.
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In arbitration, two parties present evidence to a neutral third party (an arbitrator) who has the ability to make a legally binding decision, or “award,” that is enforceable in court. In nonbinding arbitration, the decision is advisory and only final if accepted by the disputants. Arbitration is used to resolve commercial disputes and consumer and employment matters and can be voluntary or mandatory (as mandated by the terms of a contract in which the parties agree to resolve existing or future disputes through arbitration).
- How to Initiate Arbitration (American Arbitration Association)
- Stages of the Arbitration Process (American Arbitration Association)
- Qualification Criteria for Admittance to the AAA National Roster of Arbitrators (American Arbitration Association)
Also known as “early neutral evaluation,” or ENE, case evaluation is a process in which a neutral third party examines evidence and provides their evaluation of the case. Case evaluators advise disputants on the strengths and weaknesses of their evidence and positions, which the parties may use to help reach a mutually agreeable resolution. The findings and opinions of the case evaluator may be shared privately to each party, or in a joint session where all parties are present.
- Introduction to Early Neutral Evaluation
- ENE: Practical Guidelines and Steps for Getting Started (American Arbitration Association)
- Early Neutral Evaluation or Mediation?
In litigation, both parties relinquish their decision-making to a judge or jury. Collaborative law processes, on the other hand, are early interventions where parties and their lawyers commit to settlement negotiation from the outset. The process typically involves “four-way meetings” where each party and their respective lawyers (and possibly other professionals such as appraisers, financial specialists and case evaluators) exchange relevant information, develop options for resolution and reduce them to a settlement agreement.
- Lessons for Collaborative Lawyers and Other Dispute Resolution Professionals
- Collaborative Law: Using it in Commercial and Business Disputes
Although mediators coach parties to varying degrees, conflict coaching is focused on helping individuals (or parties) improve their competency in conflict management so they can resolve disputes on their own without the opinions or recommendations of a third party. Coaching between parties can help disputants better articulate their perspectives and needs, as well as acknowledge one another’s needs and interests, so a more agreeable solution can be reached in a timelier manner. Conflict coaches may also be consulted privately by one side prior to mediation, arbitration or other ADR processes to strengthen their presentation during conflict resolution discussions.
- Conflict Coaching: When it Works, and When it Doesn’t
- The Comprehensive Conflict Coaching Model
- Conflict Coaching as a Useful Dispute Resolution Process for Clients
In mediation, the third party presiding over the dispute has no power to impose a resolution. Mediators guide disputants toward a mutually agreeable settlement, but the final decision is left to the parties themselves. If an agreement is reached, the mediator may help formalize the agreement to a written contract that may be enforceable in court.
- Comparison Between Arbitration and Mediation (Financial Industry Regulatory Authority)
- 5 Tips for Winning in Mediation (American Bar Association)
- Managing a Mediation Process (United States Institute of Peace)
A mini-trial is a private hearing where attorneys for each party present a summarized version of their case to a panel consisting of a neutral adviser and representatives from each side who have authority to settle the dispute. The difference between mediation hearings and mini-trials is that the decision-makers presiding over the dispute are agents and advocates for the parties who work out a settlement amongst themselves. If the representatives fail to settle the dispute, the neutral adviser may issue a non-binding opinion.
- Mini-Trials Distinguished from Other Forms of ADR
- Mini-Trial Procedure (International Institute for Conflict Prevention & Resolution)
Parenting coordination is a child-focused ADR process in which a third party assists high conflict parents to work out problems in implementing a court-issued parenting plan. Parenting coordinators (PCs) are either appointed by a court or hired by parents who wish to reduce child-related conflicts. Although PCs usually cannot change any court-ordered guidelines such as custody or visitation, they may be able to petition the court if both parents agree on a more suitable arrangement. However, the main function of the PC is to resolve co-parenting disputes and facilitate development of healthy, functional co-parenting relationships.
- Guidelines for Parenting Coordination (Association of Family and Conciliation Courts)
- Guidelines for the Practice of Parenting Coordination (American Psychological Association)
- Parenting Coordinator Toolkit (Supreme Court of Ohio)
If a career in alternative dispute resolution sounds interesting to you, read our guide on how to become a mediator to learn more about mediation qualifications and requirements. If you want to advance your knowledge of the legal system and the skills to help opposing parties settle disputes outside of court, you might consider a master’s in dispute resolution degree.
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Last updated: April 2021