ADR can take place in so many different forms such as mediation, arbitration, negotiation, to name but a few and there are so many different techniques you can use, with the assistance of a third party, in order to ensure a successful outcome. Is it always successful? No, but then again, litigation isn’t always fair or successful (in the eyes of a losing party) either. ADR can be used prior to parties going to court, or at times it can be used parallel to the court system itself. These days, especially in commercial contracts, it is becoming increasingly popular to include arbitration clauses in order to use that as a form of dispute resolution, prior to the parties commencing litigation. Not only that, but sometimes, contracts will state that the decision of the arbitrator will be held to be final and neither party could then litigate on that matter should they wish to appeal the arbitrator’s decision.
If you really think about it, reflect on it, we all use some form of ADR in our everyday lives and relationships, be it personal or professional (such as commercial contracts). After all, what is ADR? It is a method of resolving disputes, no matter what type of relationship the parties have with one another. For example, children will try and negotiate with parents if they want something, or as a form of defence to explain their point should the parent have an “argument” with them. When we talk to our parents/children/spouses at times of when we are resolving a “fight”, a “dispute” and we are trying to prove our point and then the parties try to meet half way, is that not a form of ADR? It meets all the criteria for it – dispute occurs, both parties explain their decisions and try to reconcile or meet half way. What more do you need? Hence, we don’t even realise it, but we are using ADR from a very young age, and we all use it and will continue to use it for the rest of our lives. The only point here is that it is not obvious that we are all using some form of ADR continuously.
Like anything else, there are several advantages and disadvantages to ADR and if you break it down further, there are different advantages and disadvantages to all the variations of ADR, and how this all has a significant impact on not only the court system, but lawyers themselves too.