Alternative Dispute Resolution: What is it and should I consider it?
Alternative Dispute Resolution (“ADR”) provides a variety of different mechanisms, other than court proceedings, that can be used to resolve a conflict between two or more parties. This includes methods such as arbitration or adjudication, where an independent person gives a determination to bring an end to the dispute (similar to a Judge providing a court order) or more conciliatory methods such as mediation and negotiation, where parties aim to decide the dispute between themselves while being assisted by an independent person.
You may be wondering why, with a well-established court system, parties would find the need to seek alternatives. The answer largely lies in the features of the court system, which are not always the most practical or advantageous way of resolving certain types of disputes.
In court proceedings, the Judge or Magistrate is allocated to the matter. Judges are trained in understanding the law and applying it to the evidence presented, but they logically cannot be expected to have an in depth understanding of every industry. In most ADR forums parties will be able to agree to their own decision maker. This gives you the opportunity to have your matter decided by a person who has specialised knowledge in aspects relating to the dispute.
The flexibility of ADR extends far beyond determining the type of legal or technical knowledge that an appointed decision maker should have. Unlike in court proceedings, in ADR you are afforded the freedom to agree on practical aspects such as: setting your own timelines, determining how documents should be produced, scheduling hearing dates and agreeing to venues. The choice of venue can be regarding where the proceedings take place or it may even amount to a decision to take the whole process or part thereof online into a virtual hearing.
The ability of ADR to allow more party control can make the whole process a lot more convenient and efficient than court litigation. One no longer needs to be allocated a hearing date amongst already full court rolls and can design the process that is suitable for the needs of the matter and the parties.
In addition to the significant practical benefits, there are often times where the nature of the matter lends itself toward ADR processing rather than court-based litigation. One example is where privacy is important to the parties. In ADR, proceedings can be kept completely confidential whereas court based litigation is an inherently public forum. Other disputes which may be better suited to ADR methods include matters where parties are being expected to work together going forward. In such circumstances, obtaining a court order in respect of an issue that is presently causing a dispute, might not be helpful in mending fences or finding a long term solution. The more conciliatory methods of dispute resolution can help to facilitate better communication between parties and build more sustainable personal and commercial relationships. In addition, agreed outcomes from these types of processes tends to achieve greater party satisfaction overall, as parties are given their own platform to decide what solution works best for them.