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Alternative Dispute Resolution

ALTERNATIVE DISPUTE RESOLUTION

Court processes and litigation can be costly and, at times, unnecessary.  Alternative dispute resolution (ADR) refers to the less formal methods that can be used to resolve disputes or conflicts that do not involve litigation or going to court, and which can often achieve the desired result.  There are various forms of ADR and some methods are best suited to certain areas of law whether that is employment, family, or commercial disputes.

Other bespoke forms of ADR are available depending on the nature of your dispute or conflict, but generally speaking the main methods are:

  • Negotiation
  • Mediation
  • Arbitration

Negotiation

Negotiation usually occurs at an early stage of a dispute, between the parties who are directly involved in the dispute.  The lawyers for the parties may also be involved to assist the parties to reach resolution.  Negotiation is usually the first step and the most cost-efficient way to resolve a dispute, provided it results in a conclusive outcome.  If negotiation does not resolve the dispute, other ADR methods such as mediation can be considered.

Mediation

Mediation involves an independent, neutral person (also known as a third party or mediator), who is trained to assist both parties to discuss the issues and make their own decisions and agreements between them to resolve the issue.  If a resolution is reached at mediation, the terms of the agreement are usually recorded in a confidential written agreement outlining the outcomes and resolutions between the parties to resolve the matter.

Arbitration

Arbitration is a more formal and binding method of ADR.  This method relies on a neutral third party, an arbitrator.  The difference between an arbitrator and a mediator is that an arbitrator generally has the authority to make an enforceable decision that is binding on both parties if they cannot agree.  The arbitrator’s decision is binding whether both parties are happy with the arbitrator’s decision or not.  This method is procedurally more flexible, and can be cheaper than going through a court process.  However, it is similar to the Court process in that evidence, witnesses, and legal submissions may sometimes be presented during the course of the arbitration.

Observations

Not all ADR methods result in a resolution between parties.  If ADR does not give rise to a resolution, either party may ask the Court or a tribunal to get involved afterwards in order to make a binding determination about the dispute.  However, ADR is an important and often useful first step that is worth considering. 

In order to determine which ADR method is best suited to your issue or dispute, it is important to consider:

  • how flexible the parties are;
  • levels of resourcing and affordability;
  • timeframes;
  • the nature of the relationship between the parties involved;
  • confidentiality concerns;
  • risk levels and tolerances; and
  • the nature of the desired outcome for both parties.

You can contact one of our experts at Mactodd Lawyers for advice on how to resolve your particular issue or dispute.  We can provide you with advice and guidance on the most efficient and cost-effective means to resolve it based on your particular circumstances.

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