ADR can be rights based or interest based.
a. Rights based ADR processes require that the resolution of a conflict be based on rights of the parties. These rights are usually legal rights, socio-cultural, customary, political industry practices, religious and contractual arrangements.
b. Interest based ADR processes on the other hand allow for a resolution of disputes based on the real interest of the parties, their desires concerns and compromises.
The basic reason for ADR is that although the legal arena for dispute resolution has its benefits, it is useful to explore other options, acceptable to both parties for the resolution of their disputes.
It is with a view to exploring these options in the most appropriate manner, that ADR Practitioners have developed a wide range of processes to ensure that in every situation, there is an appropriate process that addresses the need of parties to disputes. ADR Practitioners have developed a wide range of processes to cater for disputing parties to explore the options available to them.
The ADR processes follow a method. In the rights based ADR process the dispute is resolved by a binding decision of a third party, through a recommendation made by the third party, to a stage where the parties are left to reach their own decisions with the moderation of the third party.
Negotiation is a communication between individuals for the purpose of arriving at a mutually acceptable resolution to a conflict. In negotiation the disputants themselves resolve the dispute.
Interest based negotiation
Interest based negotiation is the hallmark of ADR processes. This is a theory by which parties who come to the negotiation table with positions, unearth their hidden interest underneath the positions.
A position is something that a party to a negotiation demands. Such demands are always fueled by the interest that a party seeks to satisfy. Interest based negotiation therefore operates on the basis that if you can find the interest behind the positions of the parties and satisfy them, the parties will give up their entrenched positions.
Where the disputants cannot negotiate a solution to the problem, they may engage the assistance of a neutral third party called a Mediator to assist them overcome the barriers to a negotiated settlement. The parties remain ultimately responsible for deciding whether or not they want to enter into an agreement to resolve their dispute.
All mediations result in agreement. As a result a process called Med/Arb has been developed to allow disputants to agree at the initial stage that if the mediation fails to result in agreement, the mediator or another neutral third party will act as an arbitrator and be empowered to render a binding decision for the parties.
Where disputing companies have an ongoing relationship, they may decide to have a private mini trial. In that process they present brief arguments on behalf of the disputants to the neutral third party. The representatives and the neutral hears a summary of the case and then privately discusses possible settlement options. If they cannot agree, the neutral may provide an advisory opinion about the possible outcome in court.
Early Neutral Evaluation
In this ADR Model, a third party neutral, a Lawyer or an expert in the subject area of the dispute listens to brief presentations of the disputants and their representatives and evaluates the case. The main purpose of this model is to help the parties assess the strength and weaknesses of their respective cases.
This is a process that allows the judge/mediator to have conference with parties and their advocates to explore options for settlement. This is court annexed.
Neutral fact finding
In conflict situations where the outcome depends on findings of fact of a complex or technical nature, this ADR model is the appropriate procedure. The fact finder evaluates the evidence and renders an advisory verdict which assists the parties to assess their respective cases and to discuss settlement options.
In arbitration a neutral person or a panel decides the outcome of the dispute.
Benefits of ADR in resolving disputes are very real.
They include the following;
• Resolution of disputes is faster than mainstream court adjudication
• Disputants make their own decisions
• Being consensual, enforcement is not a problem
• Parties speak the language they best understand
• Parties choose their own neutral
Private Sector Benefits
• Creates a better business environment
• Lowers direct and indirect costs of enforcing contracts and resolving disputes
• It enhances dialogue and problem solving skills among business people
Benefits to the states
• It enhances good access to justice by reducing the backlog of cases before the courts
• It improves the efficiency of the court system
• It helps redeem the image of the justice system