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Alternative Dispute Resolution - a Discussion Paper Section 2 - What is ADR?

2.1 The phrase Alternative Dispute Resolution now covers a variety of processes which provide an alternative to litigation through the courts, and can be used to resolve disputes where those involved would be unlikely to resort to the courts.

2.2 ADR processes include arbitration, early neutral evaluation, expert determination, mediation, and conciliation. A description of how these processes work is included at Annex A. At least for some, negotiation within the processes of litigation forms part of the ADR repertoire, with important links to existing litigation practice.

2.3 Other more formal mechanisms for resolving disputes such as the private sector ombudsman schemes, utility regulators, trade association arbitration schemes in certain trade sectors, and even tribunals can also provide alternatives to the courts in some circumstances.

2.4 The various processes have very different characteristics. It can, sometimes be unhelpful and confusing to group them together under one heading. A useful distinction is that between processes in which a neutral third party makes a decision and those where the neutral offers an opinion, and/or seeks to bring to the parties to an agreement. In this paper, the term "alternative adjudication" is used to encompass decision making processes other than litigation through the courts, such as arbitration, and expert determination, ombudsmen and regulators. "Assisted settlement" is used to encompass processes designed to help the parties come to an agreement, such as mediation, conciliation, and early neutral evaluation. Of course, it is possible to have hybrid processes. "Med-arb", for example, describes a process where there is an initial agreement to mediate the dispute and, if that fails to achieve settlement, to submit outstanding issues to arbitration. In addition, some ombudsman schemes incorporate mediation into their procedures.

2.5 In this context, the word "alternative" conveys only that these are methods of dispute resolution which are not those in general use in litigation (which is why, for some, negotiation does not fall within the ADR territory). It does not imply that the use of ADR techniques is in some way second-best to going to court. A case has been made for referring instead to appropriate dispute resolution, to reflect the arguments that some ADR techniques are better suited to the needs of some cases or litigants than court proceedings. The term "Alternative Dispute Resolution" is, however, probably now so well established that there is little prospect of changing it.

2.1	The phrase Alternative Dispute Resolution now covers a variety of processes which provide an alternative to litigation through the courts, and can be used to resolve disputes where those involved would be unlikely to resort to the courts.
2.2	ADR processes include arbitration, early neutral evaluation, expert determination, mediation, and conciliation. A description of how these processes work is included at Annex A. At least for some, negotiation within the processes of litigation forms part of the ADR repertoire, with important links to existing litigation practice.
2.3	Other more formal mechanisms for resolving disputes such as the private sector ombudsman schemes, utility regulators, trade association arbitration schemes in certain trade sectors, and even tribunals can also provide alternatives to the courts in some circumstances.
2.4	The various processes have very different characteristics. It can, sometimes be unhelpful and confusing to group them together under one heading. A useful distinction is that between processes in which a neutral third party makes a decision and those where the neutral offers an opinion, and/or seeks to bring to the parties to an agreement. In this paper, the term "alternative adjudication" is used to encompass decision making processes other than litigation through the courts, such as arbitration, and expert determination, ombudsmen and regulators. "Assisted settlement" is used to encompass processes designed to help the parties come to an agreement, such as mediation, conciliation, and early neutral evaluation. Of course, it is possible to have hybrid processes. "Med-arb", for example, describes a process where there is an initial agreement to mediate the dispute and, if that fails to achieve settlement, to submit outstanding issues to arbitration. In addition, some ombudsman schemes incorporate mediation into their procedures.
2.5	In this context, the word "alternative" conveys only that these are methods of dispute resolution which are not those in general use in litigation (which is why, for some, negotiation does not fall within the ADR territory). It does not imply that the use of ADR techniques is in some way second-best to going to court. A case has been made for referring instead to appropriate dispute resolution, to reflect the arguments that some ADR techniques are better suited to the needs of some cases or litigants than court proceedings. The term "Alternative Dispute Resolution" is, however, probably now so well established that there is little prospect of changing it.