Defining Alternative Dispute Resolution

A wide range of processes are embraced by the term ADR. Categorisations usually include arbitration, mediation, conciliation, mini-trial and expert-determination. These terms refer to widely different processes with different aims, varying degrees of formality and degrees of enforceability.

The first group of processes often classed as ADR methods includes arbitration, mini-trial and expert-determination. Arbitration is a non-judicial proceeding in which awards tend to be binding, final and enforceable in the courts.⁶ In some cases it can be almost as formal as a trial. A mini-trial is a shortened, full-trial presented to senior executives of the parties to the dispute, or a retired judge, to clarify legal and factual merits.⁷ It may take place as a precursor to negotiation. Expert-determination involves instructing an expert to decide an outcome based on an agreed brief.⁸ It is often agreed that the outcome of processes in which the third party is a substitute for a judge, are enforceable in the courts.⁹

⁵ See generally RL Abel, ‘The Contradictions of Informal Justice’ in RL Abel (ed), The Politics of Informal Justice: The American Experience (New York, Academic Press, 1982).

⁶ BH Goldstein, ‘Alternatives for Resolving Business Transactions Disputes’ (1983) 58 St John's Law Review 69; MP Reynolds, Arbitration (London, Lloyd’s of London Press, 1993) pt 1; BJ Thompson, ‘Commercial Dispute Resolution: A Practical Overview’ in Emond, ‘Alternative Dispute Resolution’ (n 3) at 91.

⁷ JF Davis and LJ Omlie, ‘Mini Trials: The Courtroom in the Boardroom’ (1985) 21 Willamete Law Review 531; BC Hart ‘Alternative Dispute Resolution: Negotiation, Mediation and Mini-trial’ (1987) FICC Quarterly 113; C Ervine, Settling Consumer Disputes: A Review of Alternative Dispute Resolution (London, National Consumer Council, 1993) at 12.

⁸ J Kendall, ‘Simpler Dispute Resolution’ Solicitors Journal 29 November 1996, at 1152.

⁹ Mercury Communications Ltd v Director of Telecommunications [1996] 1 All ER 575, [1996] 1 WLR 48.

The second group of processes, those without enforceable outcomes, includes con­ciliation and mediation. Conciliation is a process of bringing parties together and reconciling differences. It may be a final process in some situations, but in others it may only be a precursor to a further ADR process. Mediation is a process, facilitated by a mediator, where parties explore possible avenues to resolution of a dispute. It leads to resolution only if the parties agree a settlement.

A. In what Way is ADR Alternative?

The unifying feature of the different ADR processes is that a third party helps to resolve the dispute. This is essentially what a judge does, raising the issue of why ADR is considered ‘alternative’. The simple answer is that the methods are alternatives to litigation and trial. Beyond this, any difference is mainly a question of differences between the kinds of processes used and the kinds of outcomes reached.

i. Adjudicative Processes and Outcomes

In arbitration, expert-determination or mini-trial the similarities to trial are strongest. They all involve adjudication by a neutral third party. These processes may be speci­fied as the means of resolving disputes arising from commercial contracts. In agreeing the contract, the parties also agree a process for resolving a dispute. This will include the forum and rules of procedure.

Parties to a contract containing an arbitration clause may agree a named inde­pendent arbiter, or a means of selecting one. They agree to accept the outcome in advance and the process follows state adjudication closely, often allowing recourse to the courts. Parties to an arbitration agreement can apply for a stay of proceedings in any litigation relating to a matter covered by the agreement.^[3182]

The motive for using these ‘alternative’ judicial processes is varied.

ii. Collaborative Processes and Outcomes

As with arbitration, an agreement to mediate or conciliate a dispute may be written into a commercial contract. However, the second set of ADR processes are more likely to be agreed following a dispute. Mediation and conciliation tend to use ad hoc or established processes that are adopted or adapted by the parties. These methods tend to aim for a more diverse set of outcomes than conventional dispute resolution or alternative adjudicative processes. In mediation and conciliation, a third party brings together the disputants aiming to facilitate understanding of differences, resolve them if possible, and create a better relationship. The outcome may be novel, or non-legal, solutions, including acceptance or accommodation of problems.^[3184]

Conciliation may have achieved its aim when the parties understand each other better, as when a couple with marital problems agree to continue their relationship. Mediation offers resolution of problems in a way that conciliation alone cannot. For example, the separating couple may need to divide marital property. Mediation may have purposes linked to, but not dominated by, resolving the dispute. This is consid­ered in the next section. As regards dispute resolution, this second group of processes is ‘alternative’ because the parties are, generally, not committed in advance to a specific process or kind of outcome.

B. Mediation

When ADR is discussed, it is often with reference to mediation. This is because, unlike the other ADR methods, mediation offers a means of settling a material dispute by a fundamentally different process to litigation. The mediation process takes many forms. It often begins with the mediator meeting both sides separately. A process of ‘shuttle diplomacy’ often follows, with the mediator moving backwards and forwards between the parties. In this way, the mediator can control the flow of information and limit interpersonal friction. If this initial process goes well, a joint meeting may follow. Sometimes, however, a settlement can be agreed without the parties meeting face to face. This is, however, a generalisation. Some types of mediation have different kinds of aim and work from different principles.

i. Types of Mediation

There are labels for different approaches to mediation, for example, facilitative, evaluative and transformative. Each has a distinct philosophy and method. These variations stem from facilitative mediation, which was the original format.

a. Facilitative (or Problem-solving) Mediation

In facilitative mediation a mediator helps the parties to explore underlying interests and resolve differences. This is similar to a problem-solving negotiation, the differ­ence lying in the crucial role of the third party.^[3185] Mediators structure a process of information exchange, facilitate a fuller understanding by the parties of the other side’s perceptions, circumstances and feelings. The third party aims to promote ratio­nal communication and negotiation.^[3186] They encourage the parties to clarify values and identify possible joint gains.

Facilitative mediators take a more proactive role than the parties could, seeking to maintain momentum towards agreement. They can help sustain dialogue, remind both sides of the advantages of agreement and persuade and cajole them to continue the process.

b. Evaluative Mediation

Evaluative mediation is a more judicial process than facilitative mediation. An evalu­ative mediator offers the parties an assessment of the strengths and the weaknesses of their cases. If it is a legal dispute, they may offer a prediction of the outcome based on evidence. An evaluative mediator tends to make recommendations to the parties regarding suitable outcomes. These can take in factors such as cost and convenience in a way that formal judicial processes cannot. Recommendations may take into account the parties’ needs and interests, but these tend not to be central concerns. The strength of evaluative mediation is an agreement reflecting a legal notion of fairness.

c. Transformative Mediation

As developed by Bush and Folger, transformative mediation has two main aims. These are mutual recognition by the parties of the other and mutual empowerment. ^[3187]

Recognition means acknowledging the other party’s needs, interests and values. It also involves achieving a better understanding of the other party’s perspective. Recognition in itself may seem to be a modest goal. In transformative mediation, however, it has substantial value. Reconciliation of the parties may not be possible, but there are other points on a continuum of outcomes that can be achieved. One outcome that can nearly always be achieved is the kind of moral growth achieved by ‘recognition of the other’.

Bush and Folger’s concept of recognition is given in thought, words or actions. In thought, it means adopting the other party’s perspective. In words, it is making statements conveying understanding of the other party’s position or view. In action, it means changing one’s own conduct to accommodate the other. While recognition is a valuable part of transformative mediation in its own right, it is also a platform for achieving the other main aim, empowerment.

Empowerment relates to five key areas: goals, options, skills, resources and decision-making. Empowerment in relation to goals involves a party understanding the importance of their interests. In relation to options they understand the available options and their ability to choose between them. In relation to skills, they develop conflict resolution capabilities. These include listening, communicating, analysis, argumentation, persuasion, organisation, problem-solving and decision-making. In relation to resources they learn how to gain additional resources and use their exist­ing resources more effectively. These forms of empowerment lead parties to gain ‘a greater sense of self-worth, security, self-determination and autonomy’.^[3188]

Transformative mediation involves three patterns of mediator conduct. Mediators first focus specifically on each party’s individual contributions to the exchange. Secondly, they encourage the parties to deliberate, reflect and choose. Thirdly, they assist in framing and reframing arguments so as to lead parties to recognise the other party. This approach stands in contrast to facilitative, problem-solving mediation, where mediators tend to discourage focus on relationship issues.

The aims of transformative mediation determine the process. Mediators support the parties in choosing their own mediation process and in determining its direction. The mediator follows this lead. Unlike other forms of mediation, it is an essential part of transformative mediation that the mediator meets with the parties together. Only the parties can give each other the ‘recognition’ that is the main rationale of the method. Transformative mediation sees the process of mediation as more important than the outcome. The aim of the process is to transform the participants. It claims to do this by helping ‘parties recognize and exploit the opportunities for moral growth inherently presented by conflict’.^[3189]

ii. Practical Significance

Facilitative, problem-solving mediation was the original format pioneered in the 1960s. The potential to assist parties to settle disputes led to an increasing emphasis on settlement. Transformative mediation was proffered as a means of recovering the original aspiration to empower and transform the participants. According to Bush and Folger, the processes of transformative and facilitative, problem-solving media­tion, are antagonistic; they cannot be combined. Neither can use the other’s methods to achieve results. Mediators must therefore choose one approach or the other and follow that one alone.

Evaluative mediation apparently sacrifices participant engagement and empower­ment in favour of more accurate prediction of possible outcomes beyond the immediate mediation context. Purists would argue that evaluative mediation does not fit eas­ily within the mediation paradigm. The focus on evaluation, rather than needs and interests, means that this approach could be classified as a form of adjudicative ADR rather than mediation. Transformative mediation treats conflict as a tool of personal growth, while the aspiration of other models is settlement via a process that minimises interpersonal conflict.

III.