In a legal context, “alternative dispute resolution” is the general umbrella under which dispute resolution mechanisms other than litigation fall. Mediation and arbitration are the primary mechanisms. They are often faster and lower cost methods of resolving disputes than litigation. In the case of mediation especially, they may also produce results that disputants are more comfortable living with.
Is the common model of formal dispute resolution in the United States. We have all seen it on TV a million times: The disputing parties are in some kind of fight, hire lawyers and get ready to go to court. A trial ensues. The judge makes a decision which one side or another, or both, detest. Or maybe the parties settle on the eve of trial, which does not come until after a substantial amount of back and forth between the parties’ attorneys.
In contrast, mediation is a procedure by which the parties involved in the dispute determine how best to resolve the dispute. The parties, or disputants, make the important decisions. They decide how to resolve the dispute. They involve a mediator, a neutral third party who has no stake in the outcome of the dispute and no decision-making authority other than on how the process is carried out. If the disputants drive the conversation, the mediator ensures they stay on the road. Mediation is a voluntary process and can be stopped at any time by any disputant.
Is, in some senses, like litigation lite. The disputants go before a mutually agreed upon decision maker — not a judge; an arbitrator — who is not usually bound by the typical rules of evidence or procedure. The arbitrator is authorized to make a decision after information is presented by the disputants. The outcome can come about more swiftly than in litigation. The usual right to appeal an unsatisfactory decision is often curtailed as a condition of agreeing to go through the arbitration. Parties disinterested in the cost and time of litigation, and who feel themselves unable to reach an agreement via discussions with the other disputant may find arbitration of interest.
Which is right? Litigation or ADR?
There is no one-size-fits-all approach in determining what method of dispute resolution is right, or will work. Litigation may be best, or adequate. Or mediation might. Or arbitration. It may be that parties attempt one way to resolve their dispute and end up doing another. The possibilities are as limitless as the facts of the dispute and the identity and capabilities of the disputants. It is fair to note, however, that alternative dispute resolution such as mediation or arbitration may work in situations where the disputants did not initially know of the opportunities such mechanisms provide.