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Understanding Alternative Dispute Resolution

The document discusses Alternative Dispute Resolution (ADR) methods, categorizing them into adjudicative methods, such as judicial systems and arbitration, and consensual methods, including mini-trials, mediation, and assisted negotiation. It highlights the advantages of ADR, such as flexibility, speed, and confidentiality, as well as disadvantages like non-negotiable issues and the desire for binding precedents. The document emphasizes that while adjudicative methods focus on conflict resolution, consensual methods also aim to improve relationships between the parties involved.

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5 views3 pages

Understanding Alternative Dispute Resolution

The document discusses Alternative Dispute Resolution (ADR) methods, categorizing them into adjudicative methods, such as judicial systems and arbitration, and consensual methods, including mini-trials, mediation, and assisted negotiation. It highlights the advantages of ADR, such as flexibility, speed, and confidentiality, as well as disadvantages like non-negotiable issues and the desire for binding precedents. The document emphasizes that while adjudicative methods focus on conflict resolution, consensual methods also aim to improve relationships between the parties involved.

Uploaded by

LUISASO
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd

ALTERNATIVE DISPUTE RESOLUTION METHODS (ADR)

Adjudicative Methods

These are characterized by the involvement of an impartial third party who is not part of
the conflict and who resolves the situation between the parties through a decision that is
imposed on them. Among these adjudicative methods, the judicial system stands out,
whose objective is to resolve conflicts arising between different members of society. We
also have arbitration. Unlike the judicial system, in arbitration, the parties decide who
will be the third party, that is, who will be the "arbitrator." Alternatively, the arbitration
center, one that is neutral for the parties and resolves the conflict, can be decided upon.
Within arbitration, there are different forms and/or types, such as one in which the
resolution is based on equity: the arbitrator does not have to adhere to the law but ensures
the resolution is fair for the parties.

Consensual Methods Consensual ADRs are characterized by the parties in conflict


voluntarily deciding to generate an agreement or solution to resolve their conflict through
consensus. Among the different existing consensual methods, we have:

• Mini-trials: These consist of meetings organized by the parties' lawyers to reach


agreements. They are quick and cost-effective methods of resolution.
• Neutral listener: The parties choose a trusted, experienced person who, based on
the opponents' proposals, determines if they are close enough to hold a negotiation
meeting.
• Mediation: A third party helps the parties reach a solution. There is a wide range
of types of mediation: from, for example, the mediator who intervenes
prominently, generating solution proposals, to the more "moderate" mediator,
who focuses on facilitating dialogue and creating solutions.
• Assisted negotiation: This is very similar to mediation in that the mediator
facilitates dialogue; the negotiator is a third party who helps the dialogue, does
not intervene significantly, and allows the parties to reach an agreement directly.
That is, they try to resolve it on their own, often conceding some issues.

For this type of ADR methods, it is important to have tools that enable the parties to
identify their own needs and those of the other party, with the goal of finding a mutually
favorable solution.

Advantages and Disadvantages of ADR

Advantages:

• Flexibility
• Focus on the main issues
• Speed
• Cost
• Preservation of the relationship between the parties
• Confidentiality

Disadvantages:

• Non-negotiable issues
• Desire to set a binding or public precedent
• Among others...
Finally, it is important to mention that the advantages and disadvantages of one
mechanism or another are related to the fact that, on the one hand, adjudicative methods
focus on the solution to the conflict, often without paying attention to or giving
importance to the relationship between the parties. The nature of the relationship between
the parties, past or present, is not important; what matters is generating a solution.
Reaching agreements through these conflict resolution mechanisms can take some time
to ensure it is fair according to what the law provides.

On the other hand, consensual methods can be much more agile. More importantly, they
offer the possibility for the parties, beyond resolving the conflict, to work on their
relationship. It is very important to consider this opportunity for the parties to transform
their relationship so that they can interact in a much more harmonious and manageable
way in the future.

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