Briefing: Alternative dispute resolution techniques

A search on the internet for alternative dispute resolution (ADR)-related topics will quickly reveal a plethora of differing processes. A selection of these processes is listed below in alphabetical order.

Adjudication; ADR fact finding; case valuation; combined dispute board; conciliation; court-annexed non-binding arbitration; court settlement process; dispute adjudication board; dispute board; dispute review board; dispute review expert; early neutral evaluation; executive tribunal; expert determination; independent expert; judicial appraisal; mediation; med-adjudication; med-arbitration; Michigan mediation; mini trial; neutral fact finding; ombudsman; private judging; project neutral; rent-a-judge; standing neutral; summary jury trial; utility regulator.

Not all of the processes listed, however, are completely unique, some being simply variations of each other and others being essentially the same process masquerading under different names. For example, executive tribunal is often referred to as mini-trial and judicial appraisal as rent-a-judge. A brief description of each of the listed methods is given here in order to provide an overall view of the similarities and differences of the various processes.

As used in the UK construction industry, adjudication is a temporarily binding decision made by an appointed neutral party on the basis of submitted documents with or without an oral hearing. It is designed to provide a speedy resolution, enabling parties to continue with the work undertaken. Generally either party may effectively appeal the adjudicator’s decision in the courts or by arbitration. The term adjudication is also used to describe other processes with different material aspects from construction adjudication.

See under neutral fact finding (Section 1.22).

See under Michigan mediation (Section 1.20).

See under dispute board (Section 1.9).

This is a process similar to mediation, but where the third party neutral, the conciliator, takes a more interventionist role in attempting to bring the parties together and in suggesting possible solutions. In many forms of conciliation the process commences as if it is a mediation, but if a settlement is not achieved then the conciliator makes a written ‘recommendation’ which may or may not be binding upon the parties.

This is widely used in the USA. The finding of the arbitrator becomes a binding order of the court if neither party seeks a rehearing by a judge.

This is a process recently introduced in the Technology and Construction Court (TCC) in the UK on a trial basis where a TCC Judge who has specifically trained in dispute resolution techniques effectively acts as a mediator.

See under dispute board (Section 1.9).

This is a procedure where a panel, normally of three independent and well-established individuals, is appointed at the commencement of a large construction project and considers project issues and recommends resolutions of disputes. Normally the employer and contractor each appoint one member and the third member is chosen by the first two. The recommendations are normally non-binding.

See under dispute board (Section 1.9).

See under dispute board (Section 1.9).

A neutral expert, commonly but not necessarily a lawyer, is appointed to review the case and tell the parties what the likely outcome would be if they went to trial. Early neutral evaluation is not binding and enables the parties to negotiate a settlement having heard the evaluation.

This is a process, sometimes referred to as mini trial, in which the parties make formal but abbreviated presentations of their best legal case to a panel of senior executives from each party, usually with an expert or mediator as a neutral chairman. Following the presentation the executives meet (with or without the chairman) to negotiate a settlement on the basis of what they have heard and learned.

The parties appoint a neutral expert who makes a binding decision against which there is no appeal.

See under expert determination (Section 1.14).

This is a procedure in which the parties appoint a judge to receive written representations from each side and make an appraisal of the likely result if the case goes to court. The parties must agree the form and extent of the submissions and whether the appraisal is to be binding or not.

This is a process in which a third party neutral, the mediator, helps all parties to a dispute to come to an agreement which each of the parties considers to be acceptable. When a settlement is reached the agreement is written down and forms a legally binding contract between the parties. Mediation can be ‘evaluative’, in which the mediator gives an assessment of the legal strength of a case, or ‘facilitative’, in which the mediator concentrates on assisting the parties to define the issues.

This is a process in which the appointed neutral begins conducting the process as if an adjudicator, but, after meeting the parties’ key professionals and expert witnesses together, gives a preliminary view on the matter in dispute. If the parties settle this is recorded in writing, but if no settlement is reached within a fixed period of time, the neutral proceeds to make a decision in which he is not bound by his preliminary view.

This is a process which begins as mediation but in which parties contract to give the mediator the power to change into an arbitrator and make a legally binding award, in the event that the mediation process does not lead to a settlement.

This is more properly described as a ‘case valuation’ process. After the normal legal formalities have been completed the parties meet with a panel of three neutrals who are all attorneys and they hear 15 min presentations by each party and give a non-binding evaluation of the case.

See under executive tribunal (Section 1.13).

A neutral, who is an expert in the subject matter of the dispute, is appointed to investigate the facts of the dispute and make an evaluation of the merits. The procedure is non-binding and used in cases involving complex technical issues. The evaluation of the neutral can form the basis of a settlement or act as a starting point for further negotiations.

Ombudsmen are independent office holders who investigate and rule on complaints from members of the public about maladministration in government and in particular services in both the public and private sector. Most ombudsmen are only able to make recommendations and only a few can make decisions which are enforceable through the courts.

See under judicial appraisal (Section 1.16).

This is a process by which a neutral is effectively appointed as a mediator for the duration of a project.

See under judicial appraisal (Section 1.16).

See under project neutral (Section 1.25).

This is a process that is widely used in the USA although the author has no knowledge of its use being proposed in the UK. This is a non-binding, abbreviated mock trial using a panel of actual jurors. The normal rules of evidence and procedure are usually modified to expedite the process, and negotiations generally follow the trial.

These are government watchdogs appointed to oversee the privatised utilities such as water, gas and telecommunications. They handle complaints from customers who are dissatisfied by the way a complaint has been handled by their supplier(s).

The alternatives to litigation and arbitration are many and appear to be proliferating. The author would be interested to learn about any other techniques which are in use or are proposed throughout the world and the extent of their use and success.