What is ADR?

Alternative Dispute Resolution (ADR) describes a body of dispute resolution techniques which avoid the inflexibility of litigation and focus instead on enabling the parties to achieve a better or similar result, with the minimum of direct and indirect cost.

The main processes are:

Mediation
The most common form of ADR. Mediation is a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution.

It is possible to distinguish between facilitative mediation, where the mediator aids or assists the parties' own efforts to formulate a settlement; and evaluative mediation where the mediator additionally helps the parties by introducing a third-party view over the merits of the case or of particular issues between the parties.

Adjudication
A process in which a third-party neutral, the adjudicator, is required by contract or statute to make summary binding decisions on contractual disputes without following the procedures of litigation or arbitration. This definition should not be confused with the broad term 'adjudication' as used to describe a category of dispute resolution processes in which a third-party neutral makes some form of decision on the outcome of the case.

Conciliation
Sometimes refers to a process similar to mediation but in which the third party takes a more activist role in putting forward terms of settlement or an opinion on the case. However, there is no international consistency over which term is regarded as the more activist and 'mediation' is increasingly being adopted as the generic term for third-party facilitation in commercial disputes.

Dispute review board
A 'standing' adjudication panel system used in major construction contracts. The board is normally appointed at the beginning of the project and stays in close touch with it, adjudicating disputes as they arise.

Early neutral evaluation (ENE)
A preliminary assessment of facts, evidence or legal merits. This process is designed to help parties avoid further unnecessary stages in litigation or, at the very least, serve as a basis for further and fuller negotiations.

Executive tribunal or mini-trial
A process, sometimes called 'mini-trial', in which parties make formal but abbreviated presentations of their best legal case to a panel of senior executives from each party, usually with a mediator or expert as neutral chairperson. Following the presentations, the executives meet (with or without the mediator or expert) to negotiate a settlement on the basis of what they have heard.

Expert determination
A process in which an independent third party, acting as an expert rather than judge or arbitrator, is appointed to decide the dispute. There is no right of appeal, thereby giving the parties finality.

Independent interventions
Developed by CEDR, independent interventions are the involvement of an impartial third party to facilitate negotiations, discussions, consensus-building, problem-solving and relationship-building or to manage existing or potential difficulties in a wide variety of situations.

Judicial appraisal
In this procedure, sometimes known as 'rent-a-judge', the parties appoint a judge to receive written presentations from each side and make an appraisal of the likely result if the case goes to court. The parties must agree the form and extent of submissions and whether the appraisal is to be binding or not.

Med-arb
A process in which parties contract to give the mediator power to 'convert' to being an arbitrator and make a legally binding award, in the event that mediated negotiations do not lead to a settlement.

Neutral fact finding
Similar to expert determination, but restricted to the clarification of particular issues and non-binding in that the neutral does not normally make an award.

Ombudsman schemes
Ombudsmen are independent, impartial adjudicators of complaints about maladministration in government departments and particular services in the public and private sectors. The particular mechanisms of ombudsman schemes vary but they often combine neutral fact-finding, mediation and adjudication in various tiers through which consumers may pursue their complaints.

Regulators
Regulators are watchdogs, commonly appointed to oversee the way that complaints are handled by the privatised utilities. Like ombudsmen schemes, they are free to complainants and can only look at the way a complaint was dealt with, not at the original source of the complaint.

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