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Alternate Dispute Resolution, trends shaping this industry



Alternative Dispute Resolution or ADR refers to the different ways through which people can resolve disputes without a trial. The common ADR processes includes mediation, arbitration and neutral evaluation. An ADR process is generally confidential, less formal and also less stressful in nature, in comparison with traditional court proceedings. A few other features of ADR proceedings include cost efficiency and speedy settlement. If we take the example of mediation, parties here play an important role in resolving their own disputes. This usually results in creative solutions, longer-lasting outcomes, greater satisfaction, and also sometimes improves relationships between the parties.


Let us understand the common processes included in ADR.


Arbitration- here, a neutral person, an “arbitrator” hears arguments and evidence from each side and then decides the outcome. Arbitration is less formal than a trial and the rules of evidence are often relaxed here. Here, parties agree to accept the arbitrator’s decision as final, and there lies no right to appeal in general cases. However, this only happens in binding arbitration. On the contrary, in non-binding arbitration, parties may request a trial if they do not accept the arbitrator’s decision.


Collaborative law- such processes often find uses where divorcing parties and their lawyers find ways to end a marriage and restructure families without the stress, delay and expense of litigation. collaborative law has three core pillars, which include,

  1. A pledge to not litigate disputes in court.

  2. An honest, voluntary, prompt, and good-faith exchange of relevant information without formal discovery.

  3. A commitment to strive for solutions that consider the highest priorities of both parties and their successors.

Mediation- here, a neutral individual, called a “mediator” helps the parties try to reach a mutually accepted resolution of the dispute. The mediator is responsible for helping parties communicate so they can try to settle the dispute themselves. This individual is not liable to decide the case. This process often finds use when family members, business partners, neighbours etc have a dispute. However, instances where one party has more power over another, this process is avoided.


Neutral evaluation- as the name states, a neutral individual is appointed with subject-matter expertise, who hears the abbreviated arguments, reviews the strengths and weaknesses of each side’s case, and offers an evaluation of likely court outcomes to promote settlement.


Parenting Coordination (PC): this is a child-focused process in which a trained and experienced mental health or legal professional called a “parenting coordinator” assists high-conflict parents to carry out their parenting plan. After the approval from the parties as well as the court, the parenting coordinator may make decisions within the scope of the court order or appointment contract. The purpose of Parent Coordination is to help parents resolve conflicts regarding their children in a timely manner and try to promote safe, healthy, and meaningful parent-child relationships.


As of now, the ADR industry is maturing and evolving at a rapid rate, and is expected to become a multimillion-dollar industry by 2029. This practice has witnessed an increase in adoption particularly in the U.S., Canada, UK, and parts of Asia. With technological advancements, more nuanced ADR techniques have come into existence, allowing mediators and arbitrators to become more sophisticated and specialised in tackling more complex cases. With such development, it is important that we look what is next in the stage for ADR.


Since the past few years, conducting dispute resolution online has been a norm. Especially during the pandemic, online dispute resolution became an accepted practice for all kinds of disputes. Many lawyers also believe that apart from being cost effective, ADR allows practitioners and their clients to not remain in proximity to the other party, which some believe to be less stressful and hence they can manage their emotions better. But even after this, it is important to establish the in-person ADR is coming back. Several courts have even announced that mediations would be held in person, for instance at the Ontario Supreme Court. The decision came on 19th April, 2022, where the court acknowledged that online proceedings can make things more efficient, but nothing can undermine the value of in-person interactions.


Additionally, ADR is also increasing commercial disputes. This aspect gained traction during the pandemic, and lawyers are certain that this practice is here to stay. More often, commercial contracts include a mandatory arbitration clause that stipulates how potential issues will be handled. Both the parties enter such clauses with an aim to avoid the long, drawn out, and often expensive litigation process. With the benefit of speedy settlement in comparison to traditional court proceedings and provision of keeping the details of their grievances confidential, ADR is much favourable. In the coming times, we should certainly expect industries to realise the importance and benefits of ADR thus getting accustomed to this approach.


References- https://ww2.nycourts.gov/ip/adr/What_Is_ADR.shtml

https://blog.herzing.ca/kompass-online-training/adr-trends-that-are-shaping-the-industry

 

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