Types of ADR

Contributed by HenryMoser and current to 27 July 2018

Mediation, arbitration and conciliation are the most common ADR processes. The feature that all three have in common is that a trained, professional, independent, even-handed person, often known as the ‘third party’ or ‘neutral’, assists the people in dispute to come to a workable, durable agreement about the future. In a mediation, parties come to an agreement entirely voluntarily; in conciliation there is more emphasis on an agreement being reached, and in arbitration parties agree in advance to be bound by the decision of the Arbitrator.

That is, ADR processes may be facilitative, advisory, determinative and, in some cases, a combination of these.

Facilitative

In facilitative processes an ADR practitioner assists the parties to a dispute to identify the disputed issues, develop options for its resolution, consider alternatives and endeavour to reach an agreement about some issues or about the whole dispute. Examples of facilitative processes are mediation, facilitation and facilitated negotiation.

Advisory

In advisory processes an ADR practitioner considers and appraises the dispute and provides advice as to the facts of the dispute, the law and, in some cases, possible or desirable outcomes, and how these may be achieved. Advisory processes include expert appraisal, case appraisal, case presentation, mini-trial and early neutral evaluation.

Determinative

In determinative processes an ADR practitioner evaluates the dispute (which may include the hearing of formal evidence from the parties) and makes a determination. Examples of determinative ADR processes are arbitration, expert determination and private judging.

Combined processes

In combined or hybrid processes, the ADR practitioner may play multiple roles. For example, in conciliation and in conferencing the ADR practitioner may facilitate discussions, as well as provide advice on the merits of the dispute. In some processes, such as that known as “med-arb”, the practitioner first uses one process (mediation) and then a different one (arbitration). Or in “arb-med”, the practitioner arbitrates first, seals the decision in an envelope and then conducts a mediation. If no resolution is achieved by mediation, the envelope is opened and the decision published to the parties who are then bound by it.