alternative dispute resolution

What is Alternative Dispute Resolution?

The process involved in assisting people to resolve their disputes without going to court.

Really any means of resolving disputes outside the courtroom.

A substitute for a formal court hearing.

Commonly referred to as ADR

Types of ADR:

Negotiation, Mediation, Conciliation, Arbitration

Negotiation

Negotiation is the simplest form of ADR.

Two people with a dispute can negotiate with each other and reach a solution themselves.

Can be completely private, fast, and cheap.

A conferring, discussing, or bargaining to reach an agreement

Mediation

A neutral third person helps the parties reach a compromise.

The mediator consults with both sides and determines what common ground exists between them.

The mediator doesn't offer an opinion, but works through the offers of each side.

Conciliation

Like mediation with one crucial difference: the mediator/conciliator is expected to recommend to the parties ways to reach a compromise.

Not legally binding on the parties.

Arbitration

Most formal method of ADR.

A third party makes a decision on behalf of both sides.

Generally considered legally binding on the parties.

What are the advantages to choosing ADR?

Timely resolution

Generally takes less time than trial

Parties in control

Parties decide who participates, timing, terms

Cost effective

Trials generally more costly

Confidential

Not on public record, no media, no embarrassments

Expertise

Mediator or arbitrator usually has expertise in area of dispute

Satisfaction

Parties can influence process to get what they want

Compliance

Where parties play a role in decision making, more likely to comply

Informal

Less stressful, more relaxed process

Improved relationships

Parties working together to reach a result

What are the disadvantages to choosing ADR?

Less safeguards

Rules of evidence relaxed in ADR

Statutes of limitations

If ADR drags on, parties may lose the right to sue

Unequal bargaining power

If one side is more able to control the other, then no advantage to using ADR

No injunctions

Can't force parties to do something or refrain from doing something

Judicial review limited

Courts generally limited in review of arbitration decisions

Enforceability

Most forms of ADR not legally binding, unless reduced to a signed contract

May not succeed

Have to go to court after all

Rapport:

Creating an open and receptive relationship with strangers

State of positive mutual attention marked by harmony and affinity

Pre-negotiation chats - "small talk"

Rapport Achieved by:

Sharing experiences, Building trust, etc.

Rapport Based on:

Idea that people are in a position to help one another

Rapport Building Behaviors:

Face the other person

Lean forward

Make eye contact

Nods of understanding

Mimicry of voice tone, facial expressions, mannerisms, posture

Rapport Building Exercises:

Finding common interests

Finding differences

Initiating small talk

Saving face (something that prevents loss of dignity or self esteem) -- partial victory for other side, involvement of other side in solution

Building trust

Conflict Defined:

A prolonged battle

A struggle

A clash

A controversy

A disagreement

Opposition

Conflict Resolution Styles:

Avoidance

Accommodation