Arbitration and mediation have been the most frequently used forms of ADR for many years, but other methods are now receiving increased attention, including courts of equity; settlement courts; ombudsmen; administrative hearing processes; early neutral evaluation; mini-trials; fact-finding commissions; international arbitration; and mediation-arbitration combination processes. The merits of these methods are hotly debated, often in highly technical terms, with lawyers espousing one or another method and critics lamenting each one as too costly, too time-consuming, or too limited in its usefulness.
Nonetheless, in response to the growing demand for an effective and efficient dispute resolution process, several conflict management alternatives have emerged over the past few years to divert litigations from conventional court proceedings. The system, however, continues to be marred with misconceptions and myths. We will explore some of these below:
Myth: ADR Is A Tool To Avoid Going To Court
Fact: ADR can occur before court proceedings, during the court process, and after a final judgment. It is not a blanket attempt to avoid going to court but a method that parties can use to resolve disputes before trial. In fact, ADR enhances the entire resolution process by adding a level of transparency that court proceedings alone can not achieve.
Myth: ADR Means Giving Up Control Over Your Case
Fact: ADR means having more control over your dispute resolution options. With ADR, the parties decide how to resolve the dispute. Parties can choose the type of process, who will help them (the neutral), and the venue that best supports the parties’ needs. These choices support equity and organizational ESG initiatives as well as mitigate physical, socioeconomic, and unrecognized disadvantages. Great ADR, in particular, offers parties an opportunity to be heard and Great ADR practitioners differentiate themselves by actively listening to facilitate a resolution to a meaningful conclusion in the most efficient manner possible. With litigation, you give up those choices; a judge or jury decides how to resolve the dispute.
Myth: ADR Is Less Effective Than Litigation
Fact: While litigation remains a common way for parties to resolve their disputes, parties have the option of various conflict resolution methods. Choosing one method over another depends on several factors, including cost, time constraints, commercial relationships, and confidentiality requirements. As each dispute will have its own specific set of circumstances, there is no one-size-fits-all solution. However, what sets ADR apart from litigation is a willingness amongst ADR firms to be held accountable for effectiveness. Great ADR in particular has embraced digital transformation by offering a unique opportunity to harness the power of data-driven insights and decisions to inform ADR practitioners as they prepare for cases, using data-points to measure and report effectiveness in a way courts simply can not.
Myth: ADR Is Informal
Fact: While it is true that there are no strict rules regarding dispute resolution procedures, this does not make it informal. On the contrary, every kind of ADR has its own set of rules and regulations that need to be adhered to by all parties involved in the process. For example, arbitration has its own procedural laws; mediation has its own mediation rules, and negotiation has its own set of norms that every party must follow. What ADR can offer is a formal commitment to consistency. Consistency in service delivery, processes that govern the different resolution options and ethical organizational practices all contribute to a Great ADR process that over time builds trust in validity of the outcome.
Moving Past Myths & Misconceptions
It is abundantly clear that ADR offers many advantages to both disputants and the institutions that facilitate them, making ADR a popular and growing choice for domestic and international parties in need of dispute resolution services. Once we move past the myths and misconceptions, the future of dispute resolution will undoubtedly see an increase in popularity and prevalence of these mechanisms as they provide a platform that is both accessible to all while not alienating or separating them from the institution of law.
