Wise elders in many Native American communities were the first dispute resolution professionals!! While these councils have been part of the fabric of their communities for several centuries, dispute resolution is a relatively new industry. As a profession it is in its infancy. Alternative Dispute Resolution (ADR) is an umbrella term for a variety of different processes, which are designed to handle different kinds of conflicts without going to court. ADR is sometimes referred to as Appropriate Dispute Resolution or “fit the forum to the fuss”. Before reviewing some of the key processes a little historical perspective is in order.
ADR has developed as a result of several crises. State and federal courts experienced a huge increase in cases with the explosion of civil rights, personal injury and consumer litigation in the later half of the twentieth century. Administrative agencies experienced huge back logs of administrative cases, especially equal employment opportunity claims. The federal government’s first foray into mediation was the Justice Department’s Community Relations Service (CRS). Created by the Civil Rights Act of 1964, CRS is the only Federal agency dedicated to assist State and local units of government, private and public organizations, and community groups with preventing and resolving racial and ethnic tensions, incidents, and civil disorders, and in restoring racial stability and harmony.
In the mid 1990s under the Clinton Administration, the federal government developed a number of policies that spawned the development of ADR offices in the federal courts and agencies. This was the result of two statutes: the Administrative Dispute Resolution Act of 1996 (administrative agencies) and the Alternative Dispute Resolution Act of 1998 (federal courts). Finally, another significant landmark was regulations, 29 CFR 1614, that mandated mediation in all Equal Employment Opportunity cases, thereby reducing the tremendous case backlog of EEO cases in the federal agencies.
These regulatory and statutory developments spawned the growth of private sector and state ADR programs. Maryland’s program is a leader in the dispute resolution field. It has developed award winning grant programs and demonstration programs, community mediation and public awareness campaigns that have increased the use of mediation and ADR in numerous sectors of the economy.
ADR methods can be graphed on a continuum, with unassisted negotiation, such as the souk or marketplace, where the consumer is expected to bargain for himself, on one end and adjudication, where the neutral arbitrator makes a decision that is enforceable on the opposite end. The continuum can be further divided into process assistance and outcome prediction. The list below is a sampling of processes under each category.
Mediation is a process whereby the mediator facilitates the dialogue between each party and helps them make their own decision. Mediation is normally a very flexible process.
Partnering is a process where the stakeholders in a large project designate at the outset how they will resolve disputes and difficulties before they arise.
Early neutral evaluation is a preliminary assessment of the issues in the case, along with the expected outcome, and is usually conducted by someone who has some expertise in the subject matter of the dispute.
Fact finding requests that a neutral third party reviews documents, conducts interviews, and writes an assessment of the issues. Fact finding is used often in the labor and employment arena, such as when there has been disciplinary action taken or a proposed removal of an employee.
Arbitration, by contrast, has the arbitrator functioning like a judge and issuing a decision on the dispute before him or her, which is based on the law and/or the contract, which established the arbitration requirement. Arbitration is generally binding and final.
Hallmarks of ADR
All ADR processes share the following characteristics:
Greater control over outcome
Precedent not binding
These features are the main reason a business owner, agency supervisor or nonprofit administrator would choose to use an ADR process over filing a lawsuit.
Ellen F. Kandell is a certified professional mediator and attorney with over 30 years of public and private sector experience. She provides mediation, group facilitation and training to diverse, national clients. Get in touch with her via email, LinkedIn, Twitter, or give her a call at 301-588-5390.