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I won’t sue you and you won’t sue me!

In the first instance, Alternate Dispute Resolution is an agreement to not litigate but rather to settle differences quicker and cheaper. ADR seeks to make space for parties to retain control of outcomes, rather than relinquishing that power to a third party.

ASSISTED NEGOTIATION | What is it?

ADR is also referred to as Alternative Dispute Resolution or more interestingly…

Appropriate Dispute Resolution.

ADR starts with good faith negotiation. Negotiation between disputants is often tough for even the most seasoned negotiators.

This is because of the understandable reluctance to show ‘trump cards’, underlying interests, or weaknesses – which may well impair a party’s case in possible future litigation or arbitration. The problem is that those underlying interests somehow need to be on the table for perspectives to be flexible, and to generate collaborative and creative ideas for consensus.

So, if negotiation fails, then a qualified neutral is appointed to explore privately, separately, and confidentially, each side’s advantages, limitations, and vulnerabilities; without revealing anything to the other side.

This is mediation – a process that lets each party ‘lay their cards on the table’ without risk, so that together with the mediator, exploration can begin. It is that transparency that allows the mediator to help identify matches, stimulate ideas, suggest what-ifs, and play devil’s advocate; while chipping away to settlement [which has a success rate of 75% plus]

If mediation fails, then the parties go to final and binding arbitration

Arbitration is effectively private adjudication much like a court case. It is designed to be fast, inexpensive, and disallowing of tactics that delay, frustrate, or are simply mischievous. How efficient arbitration is, is directly linked to the terms of the arbitration agreement. Most of us want a simple, fair, and efficient process – and that has to be stipulated in a very clear document drafted by a specialist in the field.

A poorly drafted arbitration clause usually results in shenanigans, costs, delays, and frustrations that are worse than litigation.

ALTERNATIVE DISPUTE RESOLUTION (ADR) | What is it?

Summarised, ADR is a three step process:

  1. Negotiation

non-binding, voluntary, confidential, outcomes controlled by the parties.

  1. Mediation

non-binding, voluntary, confidential, outcomes controlled by the parties.

  1. Arbitration

binding and final with outcomes controlled by a third party.

 

Discourage litigation. Persuade your neighbours to compromise whenever you can ~ Abraham Lincoln