Overview of different types of ADR

Mediation:-This is where a neutral person (the mediator) helps the parties to reach a compromise.  The job of the mediator is to consult with each party and see how much common ground there is between them.  S/he should act as a facilitator, taking offers between the parties.  The mediator doesn't offer an opinion.  Mediation is most suitable where there is some chance that the parties will co-operate.  Mediation is not legally binding on the parties[1].

Arbitration:-Arbitration is the most formal of the methods used to settle disputes without using the courts.  Arbitration is where the parties with a disagreement pass their dispute to a third party, who will make a judgment on their behalf.  This judgment will then be legally binding on the parties[2].

The relevant law on arbitration can be found in the Arbitration Act 2001

 

Negotiation:-This is the simplest form of ADR.  Where two people have a dispute they can negotiate a solution themselves.  The advantages to the parties involved are that it is completely private and it's fast and cheap. 

Where parties to a dispute cannot settle it themselves they may instruct solicitors who will negotiate on their behalf[3].  Even when negotiation fails at these early stages of a dispute and court proceedings start solicitors will usually continue to negotiate on their client's behalf.  This results in many cases being settled out of court.

Conciliation:-This is similar to mediation where a neutral third party helps the parties to resolve their dispute; however, the conciliator plays a more active role in the process.  S/he will be expected to suggest ways in which a compromise could be reached.  Conciliation is not legally binding on the parties[4].

Med-Arb:-As its name suggests mediation-arbitration, or med-arb, combines mediation and arbitration. First, a mediator tries to bring the parties closer together and help them reach their own agreement. If the parties cannot compromise, they proceed to arbitration—before that same third party or before a different arbitrator—for a final and binding decision[5].

Minitrial:-The minitrial, a development in ADR, is finding its greatest use in resolving large-scale disputes involving complex questions of mixed law and fact, such as Product Liability, massive construction, and antitrust cases. In a mini-trial, each party presents its case as in a regular trial, but with the notable difference that the case is "tried" by the parties themselves, and the presentations are dramatically abbreviated[6].

In a minitrial, lawyers and experts present a condensed version of the case to top management of both parties. Often, a neutral adviser—sometimes an expert in the subject area—sits with management and conducts the hearing. After these presentations, top management representatives—by now more aware of the strengths and weaknesses of each side—try to negotiate a resolution of the problem. If they are unable to do so, they often ask for the neutral adviser's best guess as to the probable outcome of the case[7]. They then resume negotiations.

The key to the success of this approach is the presence of both sides' top officials and the exchange of information that takes place during the minitrial. Too often, prelitigation work has insulated top management from the true strengths and weaknesses of their cases. Mini-trial presentations allow them to see the dispute as it would appear to an outsider and set the stage for a cooperative settlement.

Early Neutral Evaluation:-An early neutral evaluation (ENE) is used when one or both parties to a dispute seek the advice of an experienced individual, usually an attorney, concerning the strength of their cases. An objective evaluation by a knowledgeable outsider can sometimes move parties away from unrealistic positions, or at least provide them with more insight into their cases' strengths and weaknesses. Of course, the success of this technique depends upon the parties' faith in the fairness and objectivity of the neutral third-party, and their willingness to compromise[8].

Settlement conference-A settlement conference is a meeting between opposing sides of a lawsuit at which the parties attempt to reach a mutually agreeable resolution of their dispute without having to proceed to a trial. Such a conference may be initiated through either party, usually by the conveyance of a settlement offer; or it may be ordered by the court as a precedent (preliminary step) to holding a trial. Each party, the plaintiff and the defendant, is usually represented at the settlement conference by their own Counsel or attorney[9]. 

Expert Determination:-Expert determination is a historically accepted form of dispute resolution invoked when there isn't a formulated dispute in which the parties have defined positions that need to be subjected to arbitration, but rather both parties are in agreement that there is a need for an evaluation. The practice itself is millennia old and well established where complex legal institutions either have not developed, or are unavailable, such as tribal societies and criminal organizations[10].

Family group conference:-A meeting between members of a family and members of their extended related group. At this meeting (or often a series of meetings) the family becomes involved in learning skills for interaction and in making a plan to stop the abuse or other ill-treatment between its members[11].

Neutral fact-finding: A process where a neutral third party, selected either by the disputing parties or by the court, investigates an issue and reports or testifies in court. The neutral fact-finding process is particularly useful for resolving complex scientific and factual disputes[12].

Appellate ADR:

Appellate ADR is a very special type of ADR, which is used iu the federal and states courts in USA. If a case moves to the appellate courts then before starting the case the court engaged staff attorneys or outside lawyers compulsorily try to settle the case. In Bangladesh under section 89c of the code of civil procedure 1908 (V of 1908). There is a scope of appellate ADR[13].

Case evaluation: A non-binding process in which parties present the facts and the issues to a neutral case evaluator who advises the parties on the strengths and weaknesses of their respective positions, and assesses how the dispute is likely to be decided by a jury or other adjudicator[14].

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[1] Jamil Ahmed Chowdhury, ‘Power Imbalance and Its Impact on Mediation of Family Disputes Involving Family Violence: Australian Perspective’, Dhaka University Law Journal, part- F, vol-17, no.2, (December 2006), p.175.

[2] Akhtaruzzaman, Md., Concept and Laws on Alternative Dispute Resolution and Legal Aid, (70, University market, katabon, Dhaka, 2007), p. 82

[3] Akhtaruzzaman, Md., Concept and Laws on Alternative Dispute Resolution and Legal Aid, (70, University market, katabon, Dhaka, 2007), p. 83

[4] Halim, Md. Abdul, ADR in Bangladesh: Issues and Challenges, 2^nd Edition (January, 2011), CCB Foundation,p. 41.

[5] Ibid, P. 47.

[6] Hoque, Kazi Ebadul Houqe, Administration of Justice in Bangladesh, Asiatic Socity of Bangladesh, Dhaka (2003), P. 57

[7] Halim, Md. Abdul, ADR in Bangladesh: Issues and Challenges, 2^nd Edition (January, 2011), CCB Foundation, P. 47

[8] Huq, Dr. Naima, ADR: Recent Changes in the Civil Process, Dhaka University Studies, Part-F, June, Dhaka (2004), P. 82

[9] Akhtaruzzaman, Md., Concept and Laws on Alternative Dispute Resolution and Legal Aid, (70, University market, katabon, Dhaka, 2007), P. 86.

[10] Ibid, P. 86

[11] Ameen, Dr. Nusrat, Dispending Justice to the Poor: The Village Court, Arbitration Council Via-a-vis NGO Mediation, Dhaka University Studies, Part-F, Volume XVI, Dhaka (2005), P. 39.

[12] Akhtaruzzaman, Md., Concept and Laws on Alternative Dispute Resolution and Legal Aid, (70, University market, katabon, Dhaka, 2007), P. 85

[13] Halim, Md. Abdul, ADR in Bangladesh: Issues and Challenges, 2^nd Edition (January, 2011), CCB Foundation, P. 46.

[14] Ibid, P. 46.