Alternative Dispute Resolution (ADR)

Alternative Dispute Resolution (ADR)

1. Mediation

   • Disadvantages
     • • Settlement agreement not always reached.  • Mediation has no formal procedures and constitutional protections guaranteed by the federal and state courts.  • No legal precedent • No formal discovery process ("Lawshelf Educational Media", 2019).
       • Settlement not reached - a risk to consider depending on the dispute. There is always a chance of going to court for settlement
       • formal procedures - there are no formal procedures or constitutional protections in mediation. Could result in an inequitable settlement
       • No legal precedent - legal precedence can only be used in a court of law
       • No formal discovery process - disclosure is based on faith by both parties
   • Advantages
     • • Faster • Less expensive • Can be creative when it has to be • It is less complicated • More agreeable because there is no judge involved • Confidential • Impartial • Less time consuming • Less stressful (VEA, 2012).
       • Faster - no court schedules to consider and can be performed in any location
       • Less Expensive - Costs less than trial and court costs, both in time and money
       • Creative - No set format, creative in thinking and solutions
       • Less Complicated - solutions can be creative and both parties agree as opposed to a judges decision, which is final
       • More agreeable - do not have to agree and abide by a judge's decision
       • Confidential - parties agree to keep mediation confidential, persons out side of mediation are not aware of disclosed information
       • Imparital - The mediator is impartial and has no stake in the outcome
       • Less stressful - Costs less and takes less time, resulting in less stress for all parties involved
   • Mediator Qualifications
     • Candidates are typically subject to state specific qualifications and trainings. In addition, they need to be familiar with theory, ethics, principles and practical application of mediation, so they require general education in a relatable field of study (Kelly, 2019).
   • Mediation is informal and is used to resolve disputes as long as they do not involve criminal activity. Mediators are third parties and they do not work for the organization therefore, they have no personal stake in the outcome. They are trained to facilitate communication which is a barrier when conflict goes far enough to warrant mediation. Disputes that qualify for mediation include divorce, employment conflict, and issues with neighbors (VEA, 2012).

2. Arbitration

   • Advantages
     • • Speed and informality • Choose the arbitrator • Less formal • Private and Confidential (Murray, 2019).
       • Less Costly and time consuming to organizations
       • Parties and /or organizations choose the arbitrators
       • Informal setting, , which decreases the amount of time needed to come to a resolution
       • Negotiations are private and confidential
   • Disadvantages
     • • Lack of formal evidence • Lack of formal appeals • Arbitrators may not be unbiased if they have a history of siding with organizations • Arbitration hearings are not public which can be a disadvantage to a party • Mandatory arbitration may work in favor of the organization (Murray, 2019).
       • Binding arbitration does not usually include an appeals process
       • Could be disadvantageous
       • When organizations have a contract with an arbitration company or use the same one frequently
       • Relying on skill and experience of arbitrator instead of a judge or jury
       • If the company has a contract with an arbitration service, information could be leaked
   • Qualifications
     • There is no standard education requirement and arbitrators can specialize in certain areas that are industry specific. Experience is preferred and must be able to travel. Arbitrators, like mediators, should be unbiased and have critical thinking skills
   • According to Dessler (2013), “Arbitration is the most definitive type of third-party intervention because the arbitrator may have the power to decide and dictate settlement terms” (Dessler, 2013, "Managing Labor Relations and Collective Bargaining").

3. According to Cornell Law School (2019), Alternative Dispute Resolution ("ADR") is any resource used to settle disputes outside of the courtroom. ADR normally includes neutral evaluation, negotiation, conciliation, mediation, and arbitration. This is less expensive than going to court. The two most common forms of ADR are arbitration and mediation.