Friday, January 4, 2013

Classification of ADR

ADR usually encompasses some common modes or mechanisms: negation, conciliation, mediation and arbitration[1]. However, the variety of ADR models found in different countries may be described in the following ways:

(a)    Freestanding or Court-annexed ADR
(b)   Binding or Non-binding ADR
(c)    Formal and Informal ADR
(d)   Basic and Hybrid ADR

A.  Freestanding or Court-annexed ADR:                             
ADR may either be freestanding or court annexed. In other words, ADR may be tied to a law suit or freestanding. When the process is connected to the law suit or court case, it is called court annexed ADR (Judicial ADR).
(a) Court Annexed ADR:
In such a case the question of taking resort to ADR is conditional to court process as this is linked up with justice system of the court. After filing the court case a judge or court employee will examine the dispute and suggest or order, as a matter of course, the parties to attempt to resolve their differences through Alternative Dispute Resolution in the forms of mediation, conciliation, negation or mini-trial etc.
(b) Freestanding ADR:
On the other hand, freestanding has no relationship with court cases[2]. When disputants sit for amicable settlement by conciliation on their own, or approach a middle man or neutral third person to negotiate or mediate their dispute, this is freestanding ADR. Instances of freestanding ADR are:
  1. Commercial Arbitration
  2. Local or community based ADR.
(I) Commercial Arbitration:
 One common form of freestanding alternative dispute resolution is commercial arbitration. The disputants agree on a neutral third party to resolve the matter or on a process for naming the third party. They also agree on the rules the arbitrator will follow in deciding the case and whether the decision will be binding or simply advisory. Complex contracts, such as those for construction of a power plant, often contain arbitration provisions spelling out in advance how disputes will be handled. In other cases the parties do not decide to arbitrate a dispute until it has arisen[3].
(II) Community based ADR:
Community based alternative dispute resolution is a second freestanding form. It builds on traditional models of popular justice that rely on elders, religious leader or other community figures to help resolve local or community day to day conflict. For instance, in Bangladesh traditional Shalish system, in India lok adalot, in Philippines barangays or neighborhood tries to resolve minor disputes between residents at village level.
B. Binding or Non-binding ADR (Voluntary or Mandatory):
It is important to distinguish between binding and non-binding forms of ADR. Negotiation, mediation and conciliation programs are non-binding, and depend on the willingness of the parties to reach a voluntary agreement. Arbitration programs may be either binding or non-binding. Binding arbitration produces a third party decision that the disputants must follow even if they disagree with the result, must like a judicial decision. Non-binding arbitration produces a third party decision that the parties may reject[4]. 

C. Formal and Informal ADR:
Compared to legal process, i.e. the court cases, ADR process is less formal. It is often emphasized that ADR is informal process to dispute resolution compared to formal legal system. ADR process is less informal in the sense that rules to procedures are flexible, without formal pleadings, extensive written documentation, or rules of evidence etc. Now these informal ADR modes are again divided into two groups: formal ADR and informal ADR modes. When a particular ADR mode is court annexed, it tends to be more formal in the sense that it records and proceedings may be required to be presented before the court. On the other hand, when a  particular mode of ADR is freestanding, it tends to be informal in the sense that parties and mediator do not need to keep any record of their proceedings, do not required to follow any specific rules of procedure. Negotiation is mostly an informal process in which parties identify issues of concern, explore option for the resolution of the issues and reach a consensus or in case they fail to reach mutual agreement, the matter ends there without any formality leaving other modes of ADR options open to them. On the other hand, conciliation and mediation is also considered informal when they are freestanding and formal when they are court annexed or binding in nature. For example, traditional Shalish or mediation or conciliation through NGO efforts is instance of informal process while mediation and conciliation through the intervention of the courts are example of formal ADR process. Arbitration is more formal compared to other forms of ADR and it is strongly formal when it is binding among the parties can be enforced by the order of the court[5].

D. Basic and Hybrid ADR process:
The variety of ADR models are found in developed and developing countries may also be described in two fundamental ways: basic ADR processes, which include negotiation, conciliation, mediation and arbitration; hybrid ADR processes, in which specific elements of the basic processes have been combined to create a wide variety of ADR methods (e.g. mediation is combined with arbitration in medarb.). Hybrid ADR processes may also incorporate features found in court-based adjudication; for example, the minitrial mixes adjudication- like presentation of arguments and proofs with negotiation[6].

[1] Halim, Md. Abdul, ADR in Bangladesh: Issues and Challenges, 2nd Edition (January, 2011), CCB Foundation, p. 32.
[2] Ibid, p. 33
[3] Ibid, p. 34
[4] Ibid, p. 35.
[5] Ibid, p. 36
[6] Ibid, p. 37

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