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4.0 ADR Models and Factors to Consider when Choosing an ADR model
4.1 ADR models
There are two ways in which an independent third party in a dispute process can help in resolving the dispute; they can impose/recommend an outcome or they can assist the parties in agreeing on an outcome between them. In other words, the simple dichotomy that distinguishes between the two approaches is; resolution of disputes by decision and resolution of disputes by agreement.
Agreement based approaches include negotiation and mediation, while decision-based approaches include expert determination, arbitration and adjudication. Some approaches fall somewhere in between these two ends of the spectrum. Early neutral evaluation and conciliation, for example, involve an evaluative approach by a third party guiding the disputants towards a mutually acceptable decision. The different ADR mechanisms include;
The two disputing parties are involved in the process. The settlement reached is the point where both parties agree on. No third party is involved in the discussion.
A neutral third party (mediator) assists the parties to reach a resolution. The mediator does not make a decision, he only facilitates a discussion between the parties and the parties come up with their own resolution. The resolution is termed as a settlement agreement and once the parties sign it, it becomes binding on them.
A neutral third party (conciliator) gives a non-binding proposal at the end of the process.
A third party (the arbitrator) listens to both parties and makes a binding decision. Evidence is tabled before the arbitrator.
e) Early Neutral Evaluation
The neutral evaluator provides an opinion at an early stage on the likely outcome of a dispute if it were to be litigated. The evaluator seeks to bring the parties together and assist them in finding an agreement by common consent. This provides more insight into the strengths and weaknesses of the dispute and helps the parties identify areas of agreement and focus on the issues that remain for resolution. It can provide a ‘reality check’ for the parties and lead to more focused and less costly dispute resolution.
Adjudication involves an independent third party with specialist knowledge (the adjudicator) reaching an independent decision on a dispute. Although similar to arbitration, adjudication processes can be simpler, and more flexible and adjustable to meet specific commercial or other needs.
g) Expert determination
This involves the use of an independent expert to resolve a dispute. There are several forms of expert determination: an independent expert can be appointed to reach a binding decision; an independent expert can be appointed to provide expert advice to an adjudicator who is charged with reaching a decision on the dispute, or the parties may each commission independent expert reports to provide to the adjudicator.
4.2 Factors to consider when choosing ADR models
Some of the factors to consider while selecting an ADR model include:
The capacity of the parties to participate effectively.
Representation of the parties.
Context of the case, including the history of past disputes.
Any identified need for urgency.
Nature, importance and complexity of the issues in dispute.
The willingness of the parties.
The likelihood of an agreed outcome.