Alternative dispute resolution

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Alternative dispute resolution (ADR), or external dispute resolution (EDR), typically denotes a wide range of dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation: a collective term for the ways that parties can settle disputes, with the help of a third party.[1] However, ADR is also increasingly being adopted as a tool to help settle disputes alongside the court system itself.[2][3]

Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried (indeed the European Mediation Directive (2008) expressly contemplates so-called "compulsory" mediation; this means that attendance is compulsory, not that settlement must be reached through mediation).[4] Additionally, parties to merger and acquisition transactions are increasingly turning to ADR to resolve post-acquisition disputes.[5]

The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.[6] Some of the senior judiciary in certain jurisdictions (of which England and Wales is one) are strongly in favour of this (ADR) use of mediation to settle disputes.[7] Since the 1990s many American courts have also increasingly advocated for the use of ADR to settle disputes.[8] However, it is not clear as to whether litigants can properly identify and then use the ADR programmes available to them, thereby potentially limiting their effectiveness.[9]

Salient features

Alternative dispute resolution (ADR) is generally classified into at least four types: negotiation, mediation, collaborative law, and arbitration. Sometimes, conciliation is included as a fifth category, but for simplicity may be regarded as a form of mediation. ADR can be used alongside existing legal systems such as Sharia courts within common law jurisdictions, such as the UK.

ADR traditions vary somewhat by country and culture. There are significant common elements which justify a main topic, and each country or region's difference should be delegated to sub-pages.

ADR is of two historic types. First, methods for resolving disputes outside of the official judicial mechanisms. Second, informal methods attached to or pendant to official judicial mechanisms. There are in addition free-standing and or independent methods, such as mediation programs and ombuds offices within organizations. The methods are similar, whether or not they are pendant, and generally use similar tool or skill sets, which are basically sub-sets of the skills of negotiation.

ADR includes informal tribunals, informal mediative processes, formal tribunals and formal mediative processes. The classic formal tribunal forms of ADR are arbitration (both binding and advisory or non-binding) and private judges (either sitting alone, on panels or over summary jury trials). The classic formal mediative process is referral for mediation before a court-appointed mediator or mediation panel. Structured transformative mediation as used by the U.S. Postal Service is a formal process. Classic informal methods include social processes, referrals to non-formal authorities (such as a respected member of a trade or social group) and intercession. The major differences between formal and informal processes are (a) pendency to a court procedure and (b) the possession or lack of a formal structure for the application of the procedure.

For example, freeform negotiation is merely the use of the tools without any process. Negotiation within a labor arbitration setting is the use of the tools within a highly formalized and controlled setting.

Calling upon an organizational ombudsman's office is never, by itself, a formal procedure. (Calling upon an organizational ombudsman is always voluntary; by the International Ombudsman Association Standards of Practice, no one can be compelled to use an ombuds office.)

Organizational ombuds offices refer people to all conflict management options in the organization: formal and informal, rights-based and interest-based. But, in addition, in part because they have no decision-making authority, ombuds offices can, themselves, offer a wide spectrum of informal options.

This spectrum is often overlooked in contemporary discussions of "ADR". "ADR" often refers to external conflict management options that are important, but used only occasionally. An organizational ombuds office typically offers many internal options that are used in hundreds of cases a year. These options include:

  • delivering respect, for example, affirming the feelings of a visitor, while staying explicitly neutral on the facts of a case,
  • active listening, serving as a sounding board,
  • providing and explaining information, one-on-one, for example, about policies and rules, and about the context of a concern,
  • receiving vital information, one-on-one, for example, from those reporting unacceptable or illegal behavior,
  • reframing issues,
  • helping to develop and evaluate new options for the issues at hand,
  • offering the option of referrals to other resources, to "key people" in the relevant department, and to managers and compliance offices,
  • helping people help themselves to use a direct approach, for example, helping people collect and analyze their own information, helping people to draft a letter about their issues, coaching and role-playing,
  • offering shuttle diplomacy, for example, helping employees and managers to think through proposals that may resolve a dispute, facilitating discussions,
  • offering mediation inside the organization,
  • "looking into" a problem informally,
  • facilitating a generic approach to an individual problem, for example instigating or offering training on a given issue, finding ways to promulgate an existing policy,
  • identifying and communicating throughout the organization about "new issues",
  • identifying and communicating about patterns of issues,
  • working for systems change, for example, suggesting new policies, or procedures,
  • following up with a visitor, following up on a system change recommendation. (See Rowe, Mary, Informality — The Fourth Standard of Practice, in JIOA, vol 5, no 1, (2012) pp 8–17.)

Informal referral to a co-worker known to help people work out issues is an informal procedure. Co-worker interventions are usually informal.

Conceptualizing ADR in this way makes it easy to avoid confusing tools and methods (does negotiation once a lawsuit is filed cease to be ADR? If it is a tool, then the question is the wrong question) (is mediation ADR unless a court orders it? If you look at court orders and similar things as formalism, then the answer is clear: court-annexed mediation is merely a formal ADR process).

Dividing lines in ADR processes are often provider-driven rather than consumer-driven. Educated consumers will often choose to use many different options depending on the needs and circumstances that they face.

Finally, it is important to realize that conflict resolution is one major goal of all the ADR processes. If a process leads to resolution, it is a dispute resolution process.[10]

The salient features of each type are as follows:

  1. In negotiation, participation is voluntary and there is no third party who facilitates the resolution process or imposes a resolution. (NB – a third party like a chaplain or organizational ombudsperson or social worker or a skilled friend may be coaching one or both of the parties behind the scene, a process called "Helping People Help Themselves" – see Helping People Help Themselves, in Negotiation Journal July 1990, pp. 239–248, which includes a section on helping someone draft a letter to someone who is perceived to have wronged them.)
  2. In mediation, there is a third party, a mediator, who facilitates the resolution process (and may even suggest a resolution, typically known as a "mediator's proposal"), but does not impose a resolution on the parties. In some countries (for example, the United Kingdom), ADR is synonymous with what is generally referred to as mediation in other countries.
  3. In collaborative law or collaborative divorce, each party has an attorney who facilitates the resolution process within specifically contracted terms. The parties reach an agreement with the support of the attorneys (who are trained in the process) and mutually agreed experts. No one imposes a resolution on the parties. However, the process is a formalized process that is part of the litigation and court system. Rather than being an Alternative Resolution methodology, it is a litigation variant that happens to rely on ADR like attitudes and processes.
  4. In arbitration, participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. This is known as a 'Scott Avery Clause'.[11] In recent years, the enforceability of arbitration clauses, particularly in the context of consumer agreements (e.g., credit card agreements), has drawn scrutiny from courts.[12] Although parties may appeal arbitration outcomes to courts, such appeals face an exacting standard of review.[13]

Beyond the basic types of alternative dispute resolutions there are other different forms of ADR:

  • Case evaluation: a non-binding process in which parties present the facts and the issues to a neutral case evaluator who advises the parties on the strengths and weaknesses of their respective positions, and assesses how the dispute is likely to be decided by a jury or other adjudicator.
  • Early neutral evaluation: a process that takes place soon after a case has been filed in court. The case is referred to an expert who is asked to provide a balanced and neutral evaluation of the dispute. The evaluation of the expert can assist the parties in assessing their case and may influence them towards a settlement.
  • Family group conference: a meeting between members of a family and members of their extended related group. At this meeting (or often a series of meetings) the family becomes involved in learning skills for interaction and in making a plan to stop the abuse or other ill-treatment between its members.
  • Neutral fact-finding: a process where a neutral third party, selected either by the disputing parties or by the court, investigates an issue and reports or testifies in court. The neutral fact-finding process is particularly useful for resolving complex scientific and factual disputes.
  • Ombuds: third party selected by an institution – for example a university, hospital, corporation or government agency – to deal with complaints by employees, clients or constituents.

An organizational ombudsman works within the institution to look into complaints independently and impartially.[14]

"Alternative" dispute resolution is usually considered to be alternative to litigation. It also can be used as a colloquialism for allowing a dispute to drop or as an alternative to violence.

In recent years there has been more discussion about taking a systems approach in order to offer different kinds of options to people who are in conflict, and to foster "appropriate" dispute resolution.[15]

That is, some cases and some complaints, in fact, ought to go to a formal grievance, to a court, to the police, to a compliance officer, or to a government IG. Other conflicts could be settled by the parties if they had enough support and coaching, and yet other cases need mediation or arbitration. Thus "alternative" dispute resolution usually means a method that is not the courts. "Appropriate" dispute resolution considers all the possible responsible options for conflict resolution that are relevant for a given issue.[16]

ADR can increasingly be conducted online, which is known as online dispute resolution (ODR, which is mostly a buzzword and an attempt to create a distinctive product). It should be noted, however, that ODR services can be provided by government entities, and as such may form part of the litigation process. Moreover, they can be provided on a global scale, where no effective domestic remedies are available to disputing parties, as in the case of the UDRP and domain name disputes. In this respect, ODR might not satisfy the "alternative" element of ADR.

Benefits and disadvantages

ADR has several advantages over litigation:

  • Suitable for multi-party disputes
  • Lower costs, in many cases it's free when involving consumers
  • Likelihood and speed of settlements
  • Flexibility of process
  • Parties' control of process
  • Parties' choice of forum
  • Practical solutions
  • Wider range of issues can be considered
  • Shared future interests may be protected
  • Confidentiality
  • Risk management
  • Generally no need for lawyers
  • Can be a less confrontational alternative to the court system

However, ADR less suitable than litigation when there is:

  • A need for precedent
  • A need for court orders
  • A need for interim orders
  • A need for evidential rules
  • A need for enforcement
  • Power imbalance between parties
  • Quasi-criminal allegations
  • Complexity in the case
  • The need for live evidence or analysis of complex evidence
  • The need for expert evidence

Modern era

Traditional people's mediation has always involved the parties remaining in contact for most or all of the mediation session. The innovation of separating the parties after (or sometimes before) a joint session and conducting the rest of the process without the parties in the same area was a major innovation and one that dramatically improved mediation's success rate.

Traditional arbitration involved heads of trade guilds or other dominant authorities settling disputes. The modern innovation was to have commercial vendors of arbitrators, often ones with little or no social or political dominance over the parties. The advantage was that such persons are much more readily available. The disadvantage is that it does not involve the community of the parties. When wool contract arbitration was conducted by senior guild officials, the arbitrator combined a seasoned expert on the subject matter with a socially dominant individual whose patronage, goodwill and opinion were important.

Private judges and summary jury trials are cost- and time-saving processes that have had limited penetration due to the alternatives becoming more robust and accepted.

Country-specific examples

Canada

In the 1980s and 1990s Canada saw the beginning of a "cultural shift" in their experience with ADR practices.[17] During this time, the need was recognized for an alternative to the more adversarial approach to dispute settlement that is typical in traditional court proceedings. This growth continued over the coming decades, with ADR now being widely recognized as a legitimate and effective approach to dispute resolution. In 2014, the Supreme Court of Canada stated in Hryniak v Mauldin that "meaningful access to justice is now the greatest challenge to the rule of law in Canada today… [The] balance between procedure and access struck by our justice system must reflect modern reality and recognize that new models of adjudication can be fair and just."[18] However, in the decades leading up to this declaration there had already been a number of experiments in ADR practices across the provinces.

One of the first and most notable ADR initiatives in Canada began on January 4, 1999, with the creation of the Ontario Mandatory Mediation Program.[19] This program included the implementation of Rule 24.1, which established mandatory mediation for non-family civil case-managed actions.[20] Beginning in a selection of courts across Ontario and Ottawa in 1999, the program would be expanded in 2002 to cover Windsor, Ontario's third-largest judicial area.[21] Until this point, opposition to mandatory mediation in place of traditional litigation had been grounded in the idea that mediation practices are effective when disputing parties voluntarily embrace the process.[17] However, reports analyzing the effectiveness of Ontario's experiment concluded that overall mandatory mediation as a form of ADR was able to reduce both the cost and time delay of finding a dispute resolution, compared to a control group. In addition to this, 2/3's of the parties surveyed from this study outlined the benefits to mandatory mediation, these included:

"(i) providing one or more parties with new information they considered relevant;

(ii) identifying matters important to one or more of the parties;

(iii) setting priorities among issues;

(iv) facilitating discussion of new settlement offers;

(v) achieving better awareness of the potential monetary savings from settling earlier in the litigation process;

(vi) at least one of the parties gaining a better understanding of his ADR in Administrative Litigation 157 or her own case; and

(vii) at least one of the parties gaining a better understanding of his or her opponent's case."[20]

In other provinces, the need for ADR to at least be examined as an alternative to traditional court proceedings has also been expressed. For instance, in 2015 Quebec implemented the New Code, which mandated that parties must at least consider mediation before moving to settle a dispute in court. The New Code also codified the role of the mediator in the courtroom, outlining that mediators must remain impartial and cannot give evidence on either party's behalf should the dispute progress to a judicial proceeding.[22] In 2009, a report showed that Manitoba's experience with their Judicially Assisted Dispute Resolution program, an ADR initiative where the court appoints a judge to act as a mediator between two disputing parties who both voluntarily wish to pursue JADR.[23]

One of the main arguments for ADR practices in Canada cites the over clogged judicial system. This is one of the main arguments for ADR across many regions; however, Alberta, in particular, suffers from this issue. With a rising population, in 2018 Alberta had the highest ratio for the population to Superior Court Justices, 63,000:1. The national average on the other hand is nearly half that, with one Justice being counted for every 35,000 Canadians.[24]

To become qualified as a mediator in Canada, it is possible to gain mediation training through certain private organizations or post-secondary institutions. The ADR Institute of Canada (ADRIC), is the preeminent ADR training organization in Canada.[25] Through ADRIC you can receive either a Qualified Mediation or the more advanced Chartered Mediation certificate. To gain these, classes can be taken at one of the seven regional affiliates of ADRIC located across Canada. These include:

  • ADR Institute of British Columbia (ADR BC)
  • ADR Institure of Ontario (ADRIO)
  • ADR Institute of Saskatchewan (ADR SK)
  • ADR Atlantic Institute (ADRAI)
  • ADR Institute of Manitoba (ADRIM)
  • ADR Institute of Alberta (ADRIA)
  • Institut de médiation et d'arbitrage du Québec (IMAQ)

Iceland

Njáls saga is an Icelandic story of a mediator who was so successful that he eventually threatened the local power structure. It ends in tragedy with the unlawful burning of Njal alive in his home, the escape of a friend of the family, a mini-war and the eventual ending of the dispute by the intermarriage of the two strongest survivors. It illustrates that mediation was a powerful process in Iceland.

India

Alternative dispute resolution in India is not new and it was in existence even under the previous Arbitration Act, 1940. The Arbitration and Conciliation Act, 1996 has been enacted to accommodate the harmonisation mandates of UNCITRAL Model. To streamline the Indian legal system the traditional civil law known as Code of Civil Procedure, (CPC) 1908 has also been amended and section 89 has been introduced. Section 89 (1) of CPC provides an option for the settlement of disputes outside the court. It provides that where it appears to the court that there exist elements, which may be acceptable to the parties, the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement.

Due to the extremely slow judicial process, there has been a big thrust on Alternate Dispute Resolution mechanisms in India. While Arbitration and Conciliation Act, 1996 is a fairly standard western approach towards ADR, the Lok Adalat system constituted under the National Legal Services Authority Act, 1987 is a uniquely Indian approach.

A study on commercial dispute resolution in south India has been done by a think tank organization based in Kochi, Centre for Public Policy Research. The study reveals that the Court-annexed Mediation Centre in Bangalore has a success rate of 64%, and its counterpart in Kerala has an average success rate of 27.7%. Further, amongst the three southern states (Karnataka, Tamil Nadu, and Kerala), Tamil Nadu is said to have the highest adoption of dispute resolution, Kerala the least.[26]

Arbitration and Conciliation Act, 1996

Part I of this act formalizes the process of Arbitration and Part III formalizes the process of Conciliation. (Part II is about Enforcement of Foreign Awards under New York and Geneva Conventions.)

Arbitration

The process of arbitration can start only if there exists a valid Arbitration Agreement between the parties prior to the emergence of the dispute. As per Section 7, such an agreement must be in writing. The contract regarding which the dispute exists, must either contain an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement. The existence of an arbitration agreement can also be inferred by written correspondence such as letters, telex, or telegrams which provide a record of the agreement. An exchange of statement of claim and defence in which the existence of an arbitration agreement is alleged by one party and not denied by other is also considered as a valid written arbitration agreement.

Any party to the dispute can start the process of appointing an arbitrator and if the other party does not cooperate, the party can approach the office of Chief Justice for the appointment of an arbitrator. There are only two grounds upon which a party can challenge the appointment of an arbitrator – reasonable doubt in the impartiality of the arbitrator and the lack of proper qualification of the arbitrator as required by the arbitration agreement. A sole arbitrator or a panel of arbitrators so appointed constitute the Arbitration Tribunal.

Except for some interim measures, there is very little scope for judicial intervention in the arbitration process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before the tribunal itself. If the tribunal rejects the request, there is little the party can do except to approach a court after the tribunal makes an award. Section 34 provides certain grounds upon which a party can appeal to the principal civil court of original jurisdiction for setting aside the award.

The period for filing an appeal for setting aside an award is over, or if such an appeal is rejected, the award is binding on the parties and is considered as a decree of the court.

Conciliation

Conciliation is a less formal form of arbitration. This process does not require the existence of any prior agreement. Any party can request the other party to appoint a conciliator. One conciliator is preferred but two or three are also allowed. In the case of multiple conciliators, all must act jointly. If a party rejects an offer to conciliate, there can be no conciliation.

Parties may submit statements to the conciliator describing the general nature of the dispute and the points at issue. Each party sends a copy of the statement to the other. The conciliator may request further details, may ask to meet the parties, or communicate with the parties orally or in writing. Parties may even submit suggestions for the settlement of the dispute to the conciliator.

When it appears to the conciliator that elements of settlement exist, he may draw up the terms of the settlement and send it to the parties for their acceptance. If both the parties sign the settlement document, it shall be final and binding on both.

Note that in the US, this process is similar to mediation. However, in India, mediation is different from conciliation and is a completely informal type of ADR mechanism.

Lok Adalat

Etymologically, Lok Adalat means "people's court". India has had a long history of resolving disputes through the mediation of village elders. The current system of Lok Adalats is an improvement on that and is based on Gandhian principles. This is a non-adversarial system, whereby mock courts (called Lok Adalats) are held by the State Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal Services Committee, or Taluk Legal Services Committee, periodically for exercising such jurisdiction as they think fit. These are usually presided by a retired judge, social activists, or members of the legal profession. It does not have jurisdiction on matters related to non-compoundable offences.

While in regular suits, the plaintiff is required to pay the prescribed court fee, in Lok Adalat, there is no court fee and no rigid procedural requirement (i.e. no need to follow the process given by [Indian] Civil Procedure Code or Indian Evidence Act), which makes the process very fast. Parties can directly interact with the judge, which is not possible in regular courts.

Cases that are pending in regular courts can be transferred to a Lok Adalat if both the parties agree. A case can also be transferred to a Lok Adalat if one party applies to the court and the court sees some chance of settlement after giving an opportunity of being heard to the other party.

The focus in Lok Adalats is on compromise. When no compromise is reached, the matter goes back to the court. However, if a compromise is reached, an award is made and is binding on the parties. It is enforced as a decree of a civil court. An important aspect is that the award is final and cannot be appealed, not even under Article 226 of the Constitution of India [which empowers the litigants to file Writ Petition before High Courts] because it is a judgement by consent.

All proceedings of a Lok Adalat are deemed to be judicial proceedings and every Lok Adalat is deemed to be a Civil Court.

Permanent Lok Adalat for public utility services

In order to get over the major drawback in the existing scheme of organisation of Lok Adalats under Chapter VI of the Legal Services Authorities Act 1987, in which if the parties do not arrive at any compromise or settlement, the unsettled case is either returned to the back to the court or the parties are advised to seek remedy in a court of law, which causes unnecessary delay in dispensation of justice, Chapter VI A was introduced in the Legal Services Authorities Act, 1987, by Act No.37/2002 with effect from 11-06-2002 providing for a Permanent Lok Adalat to deal with pre-litigation, conciliation and settlement of disputes relating to Public Utility Services, as defined u/sec.22 A of the Legal Services Authorities Act, 1987, at the pre-litigation stage itself, which would result in reducing the workload of the regular courts to a great extent. Permanent Lok Adalat for Public Utility Services, Hyderabad, India

The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two other members, usually a lawyer and a social worker. There is no court fee. If the case is already filed in the regular court, the fee paid will be refunded if the dispute is settled at the Lok Adalat. The procedural laws and the Evidence Act are not strictly followed while assessing the merits of the claim by the Lok Adalat.

Main condition of the Lok Adalat is that both parties in dispute should agree for settlement. The decision of the Lok Adalat is binding on the parties to the dispute and its order is capable of execution through the legal process. No appeal lies against the order of the Lok Adalat.

Lok Adalat is very effective in settlement of money claims. Disputes like partition suits, damages and matrimonial cases can also be easily settled before Lok Adalat as the scope for compromise through an approach of give and take is high in these cases.

Lok Adalat is a boon to the litigant public, where they can get their disputes settled fast and free of cost.

Pakistan

The relevant laws (or parlour provisions) dealing with the ADR are summarized as under:

  1. S.89-A of the Civil Procedure Code, 1908 (Indian but amended in 2002) read with Order X Rule 1-A (deals with alternative dispute resolution methods).
  2. The Small Claims and Minor Offences Courts Ordinance, 2002.
  3. Sections 102–106 of the Local Government Ordinance, 2001.
  4. Sections 10 and 12 of the Family Courts Act, 1964.
  5. Chapter XXII of the Code of Criminal Procedure, 1898 (summary trial provisions).
  6. The Arbitration Act, 1940 (Indian).
  7. Articles 153–154 of the Constitution of Pakistan, 1973 (Council of Common Interest)
  8. Article 156 of the Constitution of Pakistan, 1973 (National Economic Council)
  9. Article 160 of the Constitution of Pakistan, 1973 (National Finance Commission)
  10. Article 184 of the Constitution of Pakistan, 1973 (Original Jurisdiction when federal or provincial governments are at dispute with one another)
  11. Arbitration (International Investment Disputes) Act, 2011
  12. Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2011

13.Alternative Dispute Resolution Act. 2017

Somalia

Somalia has a cultural and historic mediation and justice system known as ADR (Alternative Dispute Resolution), which is an informal justice system. It is a kind of justice system in which the arbiter listens to both sides of a dispute and then concludes a solution that both sides will accept

Sub-Saharan Africa

Before modern state law was introduced under colonialism, African customary legal systems mainly relied on mediation and conciliation. In many countries, these traditional mechanisms have been integrated into the official legal system. In Benin, specialised tribunaux de conciliation hear cases on a broad range of civil law matters. Results are then transmitted to the court of the first instance where either a successful conciliation is confirmed or jurisdiction is assumed by the higher court. Similar tribunals also operate, in varying modes, in other francophone African countries.[27]

United Kingdom

In the United Kingdom, ADR is encouraged as a mean of resolving taxpayers' disputes with Her Majesty's Revenue and Customs.[28]

In the regulated sectors, finance, telecoms and energy ADR providers exist. Outside of the regulated areas, there are schemes in many sectors which provide schemes for voluntary membership. Two sets of regulations, in March and June 2015, were laid in Parliament to implement the European Directive on alternative dispute resolution in the UK.

Alternative Dispute Resolution is now widely used in the UK across many sectors. In the communications, energy, Finance and Legal sectors, it is compulsory for traders to signpost to approved ADR schemes when they are unable to resolve disputes with consumers. In the aviation sector there is a quasi-compulsory ADR landscape, where airlines have an obligation to signpost to either an approved ADR scheme or PACT - which is operated by the Civil Aviation Authority[29].

On 1st October 2015 the UK adopted The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015[30] into law, which set out rules in relation to ADR and put measures into place to widen the use and application of ADR.

U.S. Navy

SECNAVINST 5800.13A established the DON ADR Program Office with the following missions:

  • Coordinate ADR policy and initiatives;
  • Assist activities in securing or creating cost-effective ADR techniques or local programs;
  • Promote the use of ADR, and provide training in negotiation and ADR methods;
  • Serve as legal counsel for in-house neutrals used on ADR matters; and,
  • For matters that do not use in-house neutrals, the program assists DON attorneys and other representatives concerning issues in controversy that are amenable to using ADR.

The ADR Office also serves as the point of contact for questions regarding the use of ADR. The Assistant General Counsel (ADR) serves as the "Dispute Resolution Specialist" for the DON, as required by the Administrative Dispute Resolution Act of 1996. Members of the office represent the DON’s interests on a variety of DoD and interagency working groups that promote the use of ADR within the Federal Government.

Additional resources

Cardozo School of Law's Kukin Program for Conflict Resolution

Cardozo School of Law's Kukin Program for Conflict Resolution is the seventh-ranked alternative dispute resolution program in the country[citation needed]. The program includes: courses in negotiation, mediation, arbitration and dispute resolution processes; out-of-the-classroom-applied learning and scholarship in Cardozo’s Mediation Clinic and Securities Arbitration Clinic; the Cardozo Journal of Conflict Resolution, a student-run triannual publication; the Cardozo Dispute Resolution Society; and a Certificate in Dispute Resolution, awarded to J.D. students who complete coursework, writing and service requirements. LL.M. students can also receive an LL.M. in Dispute Resolution and Advocacy.[31]

Cornell University's Scheinman Institute on Conflict Resolution

Cornell's ILR School has joined forces with Cornell's Law School to present the country's most comprehensive conflict resolution program focusing on workplace alternative dispute resolution (ADR). The Martin and Laurie Scheinman Institute on Conflict Resolution mission is to educate the next generation of neutrals – arbitrators, mediators and facilitators – who can help resolve disputes between employers and employees, both unionized and non-unionized. The Institute provides training for undergraduate and graduate students, consultation and evaluation, and conducts research. It also offers courses in two- to five-day sessions designed for professionals who are interested in or practising in the workplace dispute resolution field. These highly intensive and participatory courses are coordinated by Cornell ILR faculty and are held in the ILR School's conference centre in Manhattan and on the Ithaca campus. Participants can earn two certificates, Workplace Alternative Dispute Resolution and Conflict Management and Labor Arbitration.

Fordham Law School's Dispute Resolution Program

Fordham Law School’s Dispute Resolution program placed in the top 10 of U.S. News & World Report's 2008 rankings of the best Dispute Resolution programs in the nation, according to the recently released rankings. Along with Fordham's Clinical Training program, the Dispute Resolution program is the top-ranked specialty program at Fordham Law School. The Alternative Dispute Resolution program at Fordham combines an integrated agenda of teaching, scholarship, and practice in conflict resolution within the national and international communities. In addition to the classroom and clinical experience, the law school's student-run Dispute Resolution Society competes in ABA-sponsored interschool competitions as well as international mediation and arbitration competitions. In 2008 the Society's teams won the ABA Regional Negotiation Competition, placed third overall in the International Chamber of Commerce Commercial Mediation Competition in Paris, and reached the semifinals of the Willem C. Vis (East) International Commercial Arbitration Competition in Hong Kong. Additionally, Fordham's Dispute Resolution Society hosts an annual symposium on current Dispute Resolution topics and also teaches a class on dispute resolution skills to seniors at the Martin Luther King, Jr. High School in New York City.

Harvard Program on Negotiation

"The [Harvard] Program on Negotiation (PON) is a university consortium dedicated to developing the theory and practice of negotiation and dispute resolution. As a community of scholars and practitioners, PON serves a unique role in the world negotiation community. Founded in 1983 as a special research project at Harvard Law School, PON includes faculty, students, and staff from Harvard University, Massachusetts Institute of Technology and Tufts University."[32] Harvard currently offers 12-week courses on negotiation and mediation for participants from all disciplines and professions as well as weekend seminars taught by their professors. The Harvard PON program is currently ranked #3 falling from #2 last year according to the U.S. World and News Report, and has also remained among the top 10 schools over the last decade.[33]

Straus Institute for Dispute Resolution

Pepperdine University School of Law’s Straus Institute for Dispute Resolution[34] provides professional training and academic programs in dispute resolution including a Certificate, Masters in Dispute Resolution (MDR) and Masters of Law in Dispute Resolution (LLM). Straus provides education to law and graduate students, as well as mid-career professionals in areas of mediation, negotiation, arbitration, international dispute resolution and peacemaking.[35] The Straus Institute is ranked the number one dispute resolution school in the nation by US News and World Report.[36]

CUNY Dispute Resolution Consortium

The City University of New York Dispute Resolution Consortium (CUNY DRC) serves as an intellectual home to dispute-resolution faculty, staff and students at the City University of New York and to the diverse dispute-resolution community in New York City. At the United States' largest urban university system, the CUNY DRC has become a focal point for furthering academic and applied conflict resolution work in one of the world's most diverse cities. The CUNY DRC conducts research and innovative program development, has co-organized countless conferences, sponsored training programs, resolved a wide range of intractable conflicts, published research working papers and a newsletter. It also maintains an extensive database of those interested in dispute resolution in New York City, a website with resources for dispute resolvers in New York City and since 9/11, the CUNY DRC assumed a leadership role for dispute-resolvers in New York City by establishing an extensive electronic mailing list, sponsoring monthly breakfast meetings, conducting research on responses to catastrophes, and managing a public awareness initiative to further the work of dispute resolvers.

CPR Institute for Dispute Resolution

The International Institute for Conflict Prevention and Resolution, known as the CPR Institute, is a New York City membership-based nonprofit organization that "promotes excellence and innovation in public and private dispute resolution".[37] To this end, it serves as a "primary multinational resource for avoidance, management, and resolution of business-related disputes".[37]

The CPR Institute was founded in 1979 as the Center for Public Resources by a coalition of leading corporate general counsel dedicated to identifying and applying appropriate alternative solutions to business disputes, thereby mitigating the extraordinary costs of lengthy court trials. Today, the CPR Institute is a nonprofit educational corporation existing under the New York state laws and is tax-exempt pursuant to Section 501(c)(3) of the U.S. Internal Revenue Code. It is governed by a board of directors, and its priorities and policies are guided in large part by consultation with an executive advisory committee. Its funding is primarily derived from the annual contributions of its member organizations, and from its mission-related programming. The various operations and activities that fulfil the Institute’s mission are captured in the acronym of its name:

C: CPR convenes legal and business leaders to develop, and encourage the exchange of, best practices in avoiding, managing and resolving disputes.
P: CPR publishes its own work and that of other like-minded organizations, making resources available to a global community of problem-solvers.
R: CPR helps to resolve complex disputes among sophisticated parties, by devising rules, protocols and best practices, and by providing disputants with resources and consulting expertise in selecting appropriate methods and neutrals to assist in the dispute resolution process.

ICAR

Established at George Mason as an alternative to a sociology program due to Virginia's then policy against duplicating graduate schools, it was the nation's first major dispute resolution graduate program. It has been a major success.[citation needed]

See also

References

  1. ^ Australian Securities and Investments Commission - Complaints resolution schemes Archived 6 January 2009 at the Wayback Machine. Asic.gov.au. Retrieved on 2013-07-14.
  2. ^ J. Pirie, Andrew (2000). Alternative dispute resolution : skills, science, and the law. Toronto, Ontario: Irwin Law. p. 5. ISBN 9781459313477.
  3. ^ "Islam, Sharia and Alternative Dispute Resolution: Mechanisms for Legal Redress in the Muslim Community", published June 30, 2013, London, UK: IB Tauris & Co. ISBN 9780857722386
  4. ^ "DIRECTIVE 2008/52/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL". Official Journal of the European Union. 21 May 2008.
  5. ^ Litvak, Jeff; Miller, Brent. "Using Due Diligence and Alternative Dispute Resolutions to Resolve Post-Acquisition Disputes". Transaction Advisors. ISSN 2329-9134. Archived from the original on 23 July 2015.
  6. ^ Totaro, Gianna., "Avoid court at all costs" The Australian Financial Review Nov. 14 2008. (April 19, 2010)
  7. ^ Clift, Noel Rhys (3 May 2010). "The Phenomenon of Mediation: Judicial Perspectives and an Eye on the Future" – via papers.ssrn.com.
  8. ^ Shestwosky, Donna (2016–2017). "When Ignorance Is Not Bliss: An Empirical Study of Litigant's Awareness of Court-Sponsored Alternative Dispute Resolution Programs". Harvard Negotiation Law Review. 22: 191 – via HEINONLINE.CS1 maint: date format (link)
  9. ^ Shestowsky, Donna (2016–2017). "When Ignorance Is Not Bliss: An Empirical Study of Litigant's Awareness of Court-Sponsored Alternative Dispute Resolution Programs". Harvard Negotiation Law Review. 22: 192–193 – via HEINONLINE.CS1 maint: date format (link)
  10. ^ Taken with permission from a presentation by Stephen R. Marsh of "Archived copy". Archived from the original on 4 February 2009. Retrieved 28 January 2009.CS1 maint: archived copy as title (link)
  11. ^ Scott v Avery (1856) 5 HLCas 811, 10 ER 1121, House of Lords (UK).
  12. ^ Schwartz, David S., "Mandatory Arbitration and Fairness." 84 Notre Dame L. Rev. 1247 (April 19, 2010)
  13. ^ International Institute for Conflict Prevention & Resolution. "Arbitration Appeal Procedure." "Archived copy". Archived from the original on 8 April 2010. Retrieved 21 April 2010.CS1 maint: archived copy as title (link)
  14. ^ "What You Need to Know about Dispute Resolution: The Guide to Dispute Resolution Processes." American Bar Association. "Archived copy" (PDF). Archived (PDF) from the original on 18 May 2008. Retrieved 18 March 2008.CS1 maint: archived copy as title (link)
  15. ^ Lynch, J. "ADR and Beyond: A Systems Approach to Conflict Management", Negotiation Journal, Volume 17, Number 3, July 2001, Volume, p. 213.
  16. ^ "Notes on options for managers" (PDF). Archived from the original (PDF) on 20 September 2006.
  17. ^ a b Billingsley, Barbara (2016). "Evolution, Revolution and Culture Shift: A Critical Analysis of Compulsory ADR in England and Canada". Common Law World Review. 2: 199 – via EBSCO.
  18. ^ https://www.gov.mb.ca/justice/pubs/familylawmodern.pdf
  19. ^ https://www.attorneygeneral.jus.gov.on.ca/english/courts/manmed/notice.php
  20. ^ a b Marrie, Megan (2011). "Alternative Dispute Resolution in Administration Litigation: A Call for Mandatory Mediation". Advocate's Quarterly. 37: 155.
  21. ^ Joel, Richler (2011). "Court-Based Mediation in Canada". Judges' Journal. 50: 14–16.
  22. ^ "The Heightened Role of Mediation in the New Code of Civil Procedure". Langlois lawyers. 15 January 2015.
  23. ^ "Manitoba Judicially Assisted Dispute Resolution (JADR)". 8 August 2012.
  24. ^ "A Small Step Toward Faster Justice: Mandatory Dispute Resolution - Litigation, Mediation & Arbitration - Canada". 5 September 2018.
  25. ^ "What you need to become a mediator in Canada". Retrieved 8 July 2019.
  26. ^ ""See You In Court" Or "See You Out Of Court"? A Burdened Judicial System; Can ADR System Be An Answer?..." Archived from the original on 27 September 2017.
  27. ^ Dominik Kohlhagen, ADR and Mediation: the Experience of French-Speaking Countries, Addis Abada, 2007 (on ADR in Africa Archived 6 August 2010 at the Wayback Machine).
  28. ^ HMRC 'Tax disputes: Alternative Dispute Resolution (ADR)' "Archived copy". Archived from the original on 23 September 2015. Retrieved 23 September 2015.CS1 maint: archived copy as title (link) accessed 23 September 2015
  29. ^ "Alternative Dispute Resolution | UK Civil Aviation Authority". www.caa.co.uk. Retrieved 8 February 2019.
  30. ^ "The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015". www.legislation.gov.uk. Retrieved 8 February 2019.
  31. ^ Cardozo School of Law's Kukin Program for Conflict Resolution Archived 12 March 2014 at the Wayback Machine
  32. ^ Welcome to the Program on Negotiation (PON) Archived 23 October 2009 at the Wayback Machine. Pon.harvard.edu. Retrieved on 2013-07-14.
  33. ^ Best Dispute Resolution Programs | Top Law Schools | US News Best Graduate Schools Archived 1 January 2011 at the Wayback Machine. Grad-schools.usnews.rankingsandreviews.com. Retrieved on 2013-07-14.
  34. ^ Straus Institute for Dispute Resolution | School of Law | Pepperdine University Archived 30 March 2014 at the Wayback Machine. Law.pepperdine.edu. Retrieved on 2013-07-14.
  35. ^ "#1 Ranked Dispute Resolution Program - Straus Institute for Dispute Resolution - School of Law - Pepperdine University". law.pepperdine.edu. Archived from the original on 30 March 2014.
  36. ^ "Best Law Schools Specialty Rankings: Dispute Resolution." U.S. World and News Report "Archived copy". Archived from the original on 8 March 2009. Retrieved 2009-02-08.CS1 maint: archived copy as title (link)
  37. ^ a b "Alternatives to the High Cost of Litigation" (PDF). Archived from the original (PDF) on 24 September 2007.

Further reading

  • Gary Born. "International Commercial Arbitration" (2009 Kluwer).
  • Lynch, J. "ADR and Beyond: A Systems Approach to Conflict Management", Negotiation Journal, Volume 17, Number 3, July 2001, Volume, p. 213.
  • Mackie, Karl J. (ed.). "A Handbook of Dispute Resolution: ADR in action" (1991 Routledge).
  • William Ury, Roger Fisher, Bruce Patton. "Getting to Yes" (1981 Penguin Group).

External links

  • European Mediation Training for Practitioners of Justice - EMTPJ
  • Party-Directed Mediation: Facilitating Dialogue Between Individuals by Gregorio Billikopf, free complete book PDF download, at the University of California (3rd Edition, posted 24 March 2014)
  • Party-Directed Mediation: Facilitating Dialogue Between Individuals by Gregorio Billikopf, free complete book download, from Internet Archive (3rd Edition, multiple file formats including PDF, EPUB, and others)
  • Center for Alternative Dispute Resolution - CADR an institution provides training and accreditation for ADR practitioners.
  • ADR International Register:[1] ISO-based registration and certification for ADR practitioners such as arbitrators, conflictcoaches, mediators and negotiators.
  • ^ "Professional certified and registered ADR practitioners - ADR register". www.adr-register.com. Archived from the original on 18 January 2016. Retrieved 11 October 2015.
  • Retrieved from "https://en.wikipedia.org/w/index.php?title=Alternative_dispute_resolution&oldid=916334985"
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