Alternative dispute resolution (ADR) has been around for many years and as the name suggests has often been used as an alternative to traditional litigation. It is often termed as “ devices which are intended to solve disputes, mainly out of court or by non-judicial devices that have emerged as alternatives to the ordinary or traditional types of dispute settlement procedures”.
ADR initially emerged as a result of courts being overburdened by the massive number of suits being heard before it, but has become increasingly popular as a means of dispute resolution mechanism around the world. In addition, another reason for the emergence of ADR was that certain professionals opined that it was necessary for a specialised private forum to serve the groups and needs. For example, specialised arbitration has emerged like, construction and sports arbitration. These forums are usually presided over by experts in the field.
ADR consists of various processes which are as follows:
- Arbitration;
- Mediation;
- Negotiation;
- Conciliation; and
- Ombudsman.
[Note : This article aims to give an introduction to ADR and we intend to discuss each of the various ADR mechasim in future articles.]
In any event, there are a number of benefits in utilising ADR as opposed to traditional litigation, namely:
ADR is faster
As the saying goes, justice delayed is justice denied. Typically, a dispute brought under ADR may be settled much sooner as opposed to traditional litigation. With litigation, the concern is that there is a backlog of cases being heard, This arises as Judges are tasked to hear all disputes that are presented to the courts. ADR on the other hand would take less time with an appointed arbitrator/mediator/conciliator specially for that particular dispute.
ADR is private and confidential
With traditional litigation, once the document has been filed in court, it becomes a public document, which is accessible to everyone. In addition, the trial itself will be held in open court which is open to any member of the public to walk in and observe. To some parties, this would be akin to airing dirty laundry in public. With ADR on the other hand, parties can settle the dispute behind closed doors. Whatever happens in ADR, stays in ADR. This is extremely beneficial when it concerns more sensitive matters which should not be exposed to the public.
Maintaining relationship between disputing parties
ADR can be a less adversarial and hostile way to resolve a dispute. With traditional litigation, it creates a win-lose situation. However, with ADR, especially vide mediation or conciliation disputing parties are often able to find a middle ground and be in a win-win situation. This is especially beneficial when disputing parties can maintain their relationship with one another.
Self determination
Parties in ADR would have more control over the process and the outcome of ADR. Typically parties would have the opportunity to express themselves and to tell their side of the story as opposed to in traditional litigation. In addition, certain forms of ADR would allow for parties to come up with a more “creative” solution to their dispute, which could result in a favourable outcome to both parties.
The above outlines some of the features of ADR and the different mechanisms involved. As written above, we intend to discuss more in depth to the various mechanisms available. If you have any query as to ADR, please do not hesitate to contact us.
