The term “ADR” means “alternative dispute resolution” or “assisted dispute resolution”. It embraces forms or options or methods for dispute resolution that are an alternative to taking the matter to court and having a court decide the dispute.
Courts and tribunals “decide” a dispute because the parties to the dispute are unable to resolve it between themselves.
Going for a court decision is therefore not really “dispute resolution”. Dispute resolution is about procedures, methods, strategies that assist the parties to resolve the dispute on their own agreed terms. An expert in dispute resolution ( a dispute resolver) helps the parties achieve this.
The essence of “ADR” is some dispute resolution process that assists the parties to a dispute to either resolve the entire dispute and achieve finality on terms they negotiate between themselves or at least helps them to clarify the issues and possibly narrow the issues and put them on a pathway towards full dispute resolution. If this process wholly fails, but the parties have given it their best shot, then they may choose to take the dispute to court and allow a court to decide the outcome for them.
There is a big difference between successful “dispute resolution” and a successful court action.
Successful dispute resolution can only happen if both or all parties to the dispute conclude the dispute on terms that they can all accept and live with. The resolution that occurs is not just of the dispute, so that litigation is avoided, but often resolution of troubled and conflicted feelings and emotions. The very best of “resolutions” is when the dispute resolution process actually heals wounds and repairs broken relationships.
This rarely is the case with litigation.
Litigation is a power game that pits one disputant against the other. It is a game in which their can only be one winner. The parties to the dispute become adversaries, and their lawyers engage in adversarial combat using whatever advantage they can to win the case for their client.
It is often stated that there are no real winners in litigation.
What sort of dispute resolution options, choices, procedures or methods are embraced within “ADR”?
These are the main ones –
Each of these types or styles of ADR has a specific function and role to assist people to resolve their disputes without resorting to litigation.
There is also “hybrid ADR”, where the trained ADR practitioner is able to use a two or more of these ADR choices or options to help the parties get over the line and achieve finality.
Furthermore, there are different forms of mediation styles that can be applied –
or blended mediation processes that use a combination of these styles.
The main point of this post is to increase awareness of what “ADR” encompasses when considering it as an alternative to litigation.
Awareness leads to clarity and clarity leads to better decisions and choices.
Litigation is sometimes necessary, but can serve a good and useful purpose in our society. It is sometimes the only way to protect legal rights or safeguard important interests when otherwise they would be trammelled or ignored. On the other hand much litigation conducted in the courts and tribunals of the land is totally unnecessary and amounts to an inexcusable waste of time and money and inflicts untold stress and misery on the lives of many.
So Litigation has its good side and its bad side.
Learning about ADR and what it has to offer can help protect you against being a victim of the bad side of litigation.
That’s the main aim of this blog post.
In subsequent posts I will explain in more detail what is invovled in each of these ADR options or choices.
For more information and assistance you can call 1300 305 372.
Christopher Whitelaw
Principal of the Commercial Disputes Management Centre, Sydney
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