What is Alternative Dispute Resolution Anyway?

"'Adjudication' is a term that can include decision making by a judge in a court, by an administrative tribunal or quasi-judicial tribunal, a specially appointed commission, or by an arbitrator. An adjudicator determines the outcome of a dispute by making a decision for the parties that is final, binding and enforceable. The parties present their case to the adjudicator (or tribunal, commission or arbitrator) whose role is to weigh the evidence and make a decision that is final, binding and enforceable..."

Alternatives to adjudication processes are available to resolve disputes and include "consensual dispute resolution...[meaning] that the disputants themselves decide the process and the outcome. Consensual dispute resolution processes include negotiation, facilitation, mediation...

Negotiation is a process in which two or more participants attempt to reach a joint decision on matters of common concern in situations where they are in actual or potential disagreement or conflict...Negotiators may use a variety of approaches. "Power negotiation" involves a negotiator's understanding and strategic use of various sources of power to achieve a negotiator's bargaining goals. Interest-based negotiation (Fisher, Ury and Patton 1991) attempts to reach solutions that meet the interests of all parties.

An assumption of interest-based negotiation is that a variety of interests or motivations may underlie parties' positions. The goal of the interest-based approach is to satisfy those interests rather than bargain over bargaining positions. This style of negotiation may also be called "problem-solving" negotiation, "all gain" negotiation or "value creating" negotiation (Mnookin et al 2000). Some approaches to negotiation use game theory, including "tit-for-tat" approaches which use strategic combinations of cooperation and aggression...

Mediation is a process in which an impartial third party helps disputants resolve a dispute or plan a transaction, but does not have the power to impose a binding solution (LeBaron Duryea 2001, 121). Mediators use a variety of processes. Some mediators use "interest-based" approaches (Fisher, Ury and Patton 1991), while others use "rights-based" approaches. Some mediators are "facilitative," providing only process assistance for negotiation and using interest-based approaches. Facilitative, interest-based mediation is taught widely in North America for the purposes of community, family and commercial mediation and tends to foster the avoidance of mediator recommendations or suggestions in order to preserve mediator neutrality and to encourage party control of outcomes.

Other mediators, including many labour mediators and commercial mediators, may use an "evaluative" style, providing suggestions or recommendations (for comparison see Waldman, 1997, 1998). Evaluative, rights-based mediation processes are similar to adjudicative processes such as non-binding arbitration. Other mediators may be "activist," intervening to ensure all parties are represented and that power balances are addressed (Forester 1994; Forester and Stitzel, 1989), but activist mediators do not necessarily make specific recommendations. Other mediators consider themselves to be "transformative" mediators, working less toward settlements and more toward transformation of relationships (Bush and Folger 1994; Folger and Bush, 2001; Lederach 1995).

Still others foster "narrative" mediation processes in which the mediator is more of a joint participant with the parties in the joint creation of new possibilities for the future (Cobb, 1994; Winslade and Mo nk 2000). There is considerable debate in the field of conflict resolution about these differing approaches and styles of mediation. Many mediators are familiar with all these approaches and design mediation processes to suit the particular parties and the situation (Waldman 1997, 1998)..."

Read much more in this article by Catherine Morris from which the foregoing quotations were excerpted.

No comments: