ADR and Mediation

by Aled Davies
May 22, 2024

Alternative Dispute Resolution, also referred to as ADR, is an umbrella term to describe all the different ways you can resolve your dispute other than going to court.

The “alternative” in alternative dispute resolution just means alternative to court.

Most people think that going to a lawyer, and then court, is the only way to resolve a dispute. In fact, the lawyer has an ethical duty to tell you about all the possible options and processes for resolving your dispute. This includes mediation, but also negotiation, arbitration, conciliation and other processes.

Read on to find out how each of these processes work, and where mediation fits into ADR.

What is Negotiation?

Negotiation is a process of settling disputes in which the parties have a conversation to try to resolve the issue in a way that is acceptable to both of them.

Negotiation is one ADR option you have at any stage of a dispute. But it’s usually the first place to start if you have a dispute.

One of the most popular books ever published on negotiation is called Getting to Yes, in which the author defines negotiation as a “back-and-forth communication designed to reach an agreement when you and the other side have some interests that are shared and others that are opposed.”

This can mean sitting down with the person you are in dispute with directly and working out a resolution, or your lawyers can help you do this. Negotiation works best when the dispute has not escalated too much. It is particularly useful if you are in dispute with, say, a business partner and you want to keep the business relationship going in the future.

There are different negotiation tools and strategies you can use, and we’ll be covering some of these later in this guide but many people study or undertake training in negotiation because it is such an everyday part of life, whether you are negotiating a pay rise with your boss, or the price of a new car - the skills that you learn make a big difference in your career or life. On top of that, if you can learn to manage disputes effectively, you can prevent them from costing you a lot of money and a whole load of stress.

Negotiation is part of mediation, and both use similar skills, but in mediation the mediator facilitates, encourages and assists the negotiation. If you are finding direct negotiation difficult, for example, you can bring in a mediator to help.

It is important to remember that even if you do end up going to court, most cases are negotiated before they actually go to trial, often at the last minute, so negotiation is responsible for the outcome of a large amount of disputes.

What is Arbitration?

Arbitration is a process where parties refer their dispute to a private, independent third party chosen by them who will make a binding decision on the dispute.

The parties may use one arbitrator, or an arbitration panel of up to three who will decide on the outcome of their dispute. The arbitrator(s) will read all the papers and sometimes hold a hearing with the parties, then make a decision which is called an award, which is binding.

Arbitration and Court

Arbitration sounds and looks quite like a court hearing but the difference is that arbitrators are private individuals, often lawyers or other professionals who have trained in arbitration, rather than judges.

Another key difference between arbitration and court is that arbitration is a confidential process, so nothing that happens in arbitration can be shared or reported on.

Arbitration is particularly popular for commercial disputes, because of this confidentiality, and because it can be quicker and cost less than court. It is also a more flexible process than court. You can also choose an arbitrator who has expertise in the area of dispute. Commercial contracts often include an arbitration clause, where the parties agree to arbitrate any dispute even before it has arisen.

Arbitration is also used in some very specific types of disputes, such as sports disputes. There is even an International Court of Arbitration for Sports in Switzerland.

For a comprehensive understanding of international arbitration you can register for an international commercial arbitration introductory course that will give you a detailed insight into the world of arbitration and the career opportunities available.

The main differences between arbitration and mediation

Arbitration and mediation are very different since the mediator does not make a decision like the arbitrator does, but sometimes the processes are joined together and an arbitration may include a mediation, or a mediation might turn into an arbitration if the parties can’t agree.

Of course the benefits of mediation far outweigh the benefits of arbitration. Mediation is cheaper, faster and the outcome in mediation is in the hands of the parties, unlike arbitration which is costly, time consuming and an arbitrator decides on the outcome.

What is Conciliation?

Conciliation is very similar to mediation. An independent third party, called a conciliator, helps the parties resolve their dispute in a way that is acceptable to both of them.

It’s tricky to tell the difference between mediation and conciliation as both are confidential and facilitative processes. The role of the third party is where the difference is. The conciliator generally plays a more active role than a mediator in steering the dispute to a particular resolution. In mediation, the mediator stops short of making any recommendations or proposals for settlement, but in conciliation the conciliator can do this.

Conciliation is often used in building and construction disputes, and many building contracts contain conciliation clauses which are used if a dispute arises.

What is Adjudication?

Adjudication is another form of ADR in which an independent third party makes a decision on how a dispute should be resolved. It is less formal and quicker than court or arbitration.

It used to also be used mainly in construction disputes but is now also available for resolving other disputes such as employment and contract disputes in many countries. The outcome of an adjudication can usually be appealed to a court, if the parties are not happy with it.

What is Online Dispute Resolution?

Online Dispute Resolution is a type of dispute resolution where technology assists the parties in resolving their disputes, in a variety of different ways.

You may have already used Online Dispute Resolution (ODR) without realising. This type of ADR is mainly used for resolving low value consumer disputes, such as those that arise when buying or selling things on the internet or booking holidays, for example.

They use the principles of mediation and negotiation, but often use AI or other technology as the third party, especially in the early stages. It may seem like you are talking to a person, but actually the technology is managing the process and usually uses a type of negotiation called “blind bidding” to get to a resolution.

More elaborate forms of ODR are being launched all the time, and AI is likely to play a large role in these ADR processes in the future.

What is Online Mediation?

Online mediation is the same as any other mediation, except that it takes place online, usually via a video conferencing platform.

The mediator will meet with you and the other party online, sometimes together and sometimes separately. This is a really efficient way of mediating, as it is quicker to schedule and also costs less parties lawyers and the mediator don’t all have to travel to an in-person venue.

So if you find you have a dispute, make sure to consider all the different ADR and mediation options before going to court.

Don’t be afraid to ask your lawyer about ADR, as they have a duty to help you resolve your dispute as quickly and efficiently as possible.