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:
- Commercial Arbitration
- 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].
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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