Alternative Dispute Resolution

1) Introduction

"God did not decree that the job of a litigator is to lay waste to the adversaries and win all for client.

"Our system of civil litigation was crafted by men, incorporating a Hegelian dialectic of thesis - antithesis - synthesis; both sides beat themselves bloody, and a judge or jury decides what truths have emerged from the process.

"In the economic and cultural milieu in which this system was developed hundreds of years ago, it worked reasonably well. Times change. Today it can be described as functional only by a definition of 'functional' that countenances clients routinely billed more in transactional costs for the litigation process than the amount of the settlement or judgement, and society taxed with the collateral costs and disruption of protracted and proliferating litigation.

"We might want to pause before we drag this time-hallowed system with us - or let it drag us with it - into the new millennium."

This quotation is taken from an article by Antonio C Piazza, a partner in the San Francisco firm of Gregorio, Haldeman and Piazza.91 His telling and graphic description of what many see as the defects in the litigation system serves as a fitting introduction to this chapter of the Manual on alternative dispute resolution (ADR).92

The chapter looks at what ADR is, its development and types; ADR in an international context; ADR as a pre-arbitral dispute mechanism; using a combination of mediation and arbitration; institutions offering ADR systems, including the Netherlands Arbitration Institute's Minitrial Rules; the UN Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Conciliation and the UNCITRAL Conciliation Rules; the future development of international ADR; and ADR in action.

2) ADR: An Overview

What is ADR?

ADR is generally taken to cover all forms of dispute resolution other than litigation and arbitration. The reason for this is clear: both litigation and arbitration operate regardless of the will of the parties and result in a binding and enforceable outcome. The Defendant / Respondent against whom litigation / arbitration proceedings are launched has no choice as to whether to participate and may be faced with a judgment / award that can be enforced in the national courts. In litigation the process is imposed by the State. In arbitration the result follows from the parties' agreement to arbitrate, coupled with the State's support of the arbitral system.

But ADR in its various forms - the most familiar being mediation and conciliation - is a consensual process: The parties do not have to take part in it. And if they do, they do not have to abide by the outcome. Generally speaking, national courts will not enforce ADR agreements and the ADR process - unlike arbitration - is not subject to any statutory code (in England at any rate).

The development of ADR

There is nothing new in the concept of ADR: Mediation and conciliation have been used in the East for centuries. What is new is the kind of techniques that have been developed in the United States, which has led the way in developing new methods of dispute resolution other than by way of litigation and arbitration.

This writer's view on the topic was set out in an article entitled 'The Role of ADR in the Resolution of International Disputes', published in 1996 in Arbitration International, the Journal of the London Court of International Arbitration (LCIA):

"Alternative Dispute Resolution (ADR) has developed alongside litigation and arbitration as a means of resolving commercial disputes in accordance with procedures aimed at avoiding the inherent costs and delays of the adversarial process. Those costs and delays have been felt most acutely in the United States, where pre trial obligations are the m...

If you are already a vLex customer, Access Here