Alternative Dispute
Resolution

Alternative Dispute Resolution (ADR) is the umbrella name given to a number of practices which are all alternatives to resolving disputes without pursuing litigation (going through Court procedures).

The main types of ADR services are mediation (which sub divides into civil, commercial, workplace, family and community mediation depending upon the type of dispute that needs to be resolved), arbitration, adjudication, conciliation, early neutral evaluation, med arb and expert determination.

The nature of your dispute and the type of outcome you wish to achieve will determine which type of dispute resolution service you require, although a number of these processes are similar, they are governed by very different procedures and protocols. In this article we shall focus on the differences between mediation and arbitration.

Mediation involves an independent mediator who will provide assistance to the disputing parties in order to reach a mutually decided solution. It is important to make note of the fact that the terms are decided by the conflicting parties rather than a third party. This means that they are themselves responsible for the outcome and the mediator is present as a guide who will highlight important points in a proposed agreement. The objective of this is to help both parties to reach a compromise they are both satisfied with.

This is known as facilitative mediation; however evaluative mediation is where the mediator actually departs with their own evaluation of the strengths and weaknesses of their case, taking into consideration the litigation risk.

Arbitration is very similar to litigation and court action; however it is a faster process. An arbitrator, unlike a mediator, will preside over a case and will declare themselves in favour of one of the parties and will make a binding decision known as an award to which the parties have to abide by. Arbitrations can be conducted by one arbitrator or a panel, usually consisting of three members, and they can be conducted on a documents only basis, or in person and or a combination of both.

Therefore, if you want to stay in control and want to formulate your own outcome, the dispute resolution procedure to use would be mediation, whereby if you are not happy with any of the outcomes you and the other party come up with; there is no requirement to agree to them. This means you can negotiate terms rather than having to conform to conditions that have been decided by a third party.

However, if you would like a decision to be reached for you, then the alternative dispute resolution process you should use would be arbitration. This does run a considerable risk compared to mediation, since the final decision of the arbitrator will be set in stone, regardless of whether it benefits you or not. Whichever decision is made, you will be bound by it and will be required to abide by it.

Written by Mediator Harvinder Singh Bhurji  LLB (Hons) QDR (M) MCIArb MCMI CTLLS, Director, International Commercial, Workplace Mediator & Trainer.