Adr Methods and Techniques[1]

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  ADR METHODS AND TECHNIQUES Some of the primary ADR techniques used by Government and industry include the following: 1 1. Arbitration  is one of the oldest forms of ADR. Arbitration involves a formal adversarial hearing before a neutral called the arbitrator with a rela!ed evidentiary standard. he arbitrator is usually a sub#ect matter e!pert. An arbitrator or an arbitration panel of two or more arbitrators serves as a $private #udge$ to render a decision based on the merits of the dispute.  Arbitration decisions can be binding or non%binding.&. Conciliation  is a process in which a third party called a conciliator restores damaged relationships between disputing parties by bringing them together clarifying perceptions and pointing out misperceptions. he conciliator may or may not be totally neutral to the interests of the parties. Successful conciliation reduces inflammatory rhetoric and tension opens channels of communication and facilitates continued negotiations. 'requently conciliation is used to restore the parties to a pre%dispute status quo after which other ADR techniques may be applied. (onciliation is also used when parties are unwilling unable or unprepared to come to the bargaining table.). Convening  serves primarily to identify the issues and individuals with an interest in a specific controversy. he neutral called a convenor is tas*ed with bringing the parties together to negotiate an acceptable solution. his technique is helpful where the identity of interested parties and the nature of issues are uncertain. +nce the parties are identified and have had an opportunity to meet other ADR techniques may be used to resolve the issues.,. Early Neutral Evaluation  involves an informal presentation by the parties to a neutral with respected credentials for an oral or written evaluation of the parties- positions. he evaluation may be binding or non%binding. any courts require early neutral evaluation particularly when the dispute involves technical or factual issues that lend themselves to e!pert evaluation. /t may also be an effective alternative to formal discovery in traditional litigation.0. Facilitation  improves the flow of information within a group or among disputing parties. he neutral called a facilitator provides procedural direction to enable the group to effectively move through negotiation towards agreement. he facilitator-s focus is on the procedural assistance to conflict resolution compared to a mediator who is more li*ely to be involved with 1  Adapted from Alternative Dispute Resolution, A Resources Guide, published by the United States Office of Personnel Manaement and the ! ual !mployment Opportunity #ommission, paes $%1 to $%&'  substantive issues. (onsequently it is common for a mediator to become a facilitator but not the reverse.. Fact-Finding  or Neutral Fact-Finding  is an investigative process in whicha neutral $fact finder$ independently determines facts for a particular dispute usually after the parties have reached an impasse. /t succeeds when the opinion of the neutral carries sufficient weight to move the parties away from impasse and it deals only with questions of fact not interpretations of law or policy. he parties benefit by having the facts collected and organi2ed to facilitate negotiations or if negotiations fail for traditional litigation.3. Interest Based Negotiation  or Interest Based Bargaining  is an established negotiating technique through which the parties meet to identify and discuss the issues at hand to arrive at a mutually acceptable solution. /t is a positive effort by the parties to collaborate rather than compete to resolve a #oint dispute. he focus of negotiations is on common interests of the parties rather than their relative power or position. he goal is to reduce the importance of how the dispute occurred and create options that satisfy both mutual and individual interests. /nterest based negotiations are also referred to as $principled$ or $win%win$ negotiations. his informal process is one of the most fundamental methods of dispute resolution offering parties ma!imum control over the process. /t does not necessarily require the use of neutrals.4. Litigation  although not an ADR technique is intertwined with ADR. 5ot every case can or should be settled. 6owever each case proceeding toward litigation benefits by an evaluation for resolution. (onsideration of using ADR techniques for resolving an aspect of a case such as merit quantum attorneyfees or future obligations is common. 7. Masters  or Special Masters  are neutrals appointed by a court in accordance with #udicial rules. he master assists the parties to manage discovery narrow issues agree to stipulations find facts and occasionally reach settlement. /n non%#ury actions the court may accept the master-s findings of fact.18. Mediated Arbitration (Med-Arb)  is a combination of mediation and arbitration. /nitially a neutral third party mediates a dispute until the parties reach an impasse. After the impasse a neutral third party issues a binding or non%binding arbitration decision on the cause of the impasse or any unresolved issues. he disputing parties agree in advance whether the same or a different neutral third party conducts both the mediation and arbitration processes. 9se of the same person for both processes creates a problem when the mediator turned arbitrator must ignore previously acquired confidential information. (  11. Mediation involves a neutral called a mediator who assists the parties innegotiating an agreement. he mediator serves as an $agent of reality$ to help the parties frame the issues structure negotiations and recogni2e self interests as well as the interests of the other side. ediators may be but are not necessarily sub#ect matter e!perts concerning the substantive issues in dispute. he parties may meet with the mediator together or individually as the circumstances dictate. A meeting between one party and the mediator called a caucus allows the party to privately e!press emotions and core interests. hese private sessions avoid alienation between the parties that might otherwise inhibit open communications. ediators are not vested with any decision ma*ing authority and cannot impose resolution on the parties the parties ma*e decisions themselves. 6owever the mediator li*e a facilitator serves as the proponent of the process to *eep discussions movingon trac*.1&. Minitrial (Mini-trial ; is a misnomer. his technique provides for a summary presentation of evidence by an attorney or other fully informed representative for each side to decision ma*ers usually a senior e!ecutive from each side. After receiving the evidence the decision ma*ers privately discuss the case. $initrial$ is not a small trial it is a sophisticated and structured settlement technique used to narrow the gap between the parties- perceptions of the dispute and which $facts$ are actually in dispute. his hybrid technique can occur with or without a neutral-s assistance but neutralsfrequently facilitate the processes for presentation of evidence and discussionamong the decision ma*ers and serve as a mediator to reach a settlement. ini%trials can be more e!pensive than most other ADR techniques because the cost of presenting even summary evidence to senior e!ecutives is high. herefore this process is generally reserved for significant cases involving potential e!penditure of substantial time and resources in litigation.1). !buds!an (!budsperson ; is an organi2ationally designated person who confidentially receives investigates and facilitates resolution of complaints. he ombudsman may interview parties review files and ma*e recommendations to the disputants but normally is not empowered to imposesolutions. +mbudsmen often wor* as management advisors to identify and recommend solutions for systemic problems in addition to their focus on disputes from individual complainants.1,. artnering  is a preemptive technique to avoid disputes before they arise by building a strong relationship between parties. he goal is for the parties to avoid a ma#or dispute or alternatively minimi2e disruptive impact by focusing on the development of a cooperative wor*ing relationship rather thanan adversarial one. <artnering is a relatively new hybrid form of dispute resolution. )  10. eer #evie$ anels  or %ispute #esolution anels  use groups or panels to conduct fact%finding inquiries assess issues and present a wor*able resolution to resolve disputes. /n wor*place personnel disputes the panel is generally composed of *nowledgeable employees and supervisors. <anels may be standing groups or formed ad hoc from a pool of qualified employees and supervisors. /n contract disputes the panel is often composed of two or more neutral sub#ect matter e!perts selected by the disputing parties. Decisions of the panel may or may not be binding depending on the advance agreement of the parties. his method attempts toresolve disputes at their inception to avoid traditional litigation.1. rivate &udging  also called $rent%a%#udge$ is an approach midway between arbitration and litigation in terms of formality and control of the parties. he parties typically present their case to a #udge in a privately maintained courtroom with all the accouterments of the formal #udicial process. <rivate #udges are frequently retired or former $public$ #udges with sub#ect matter e!pertise. his approach is gaining popularity in commercial situations because disputes can be concluded much quic*er than under the traditional court system.13. Settle!ent Con'erence  is an ADR technique either permitted or required by statute in many #urisdictions as a procedural step before trial. An assigned or #ointly selected $settlement #udge$ typically applies mediation techniques to strongly suggest a specific settlement range based on his or her assessment of the case. 6owever these #udges play a much stronger authoritative role than mediators since they also provide the parties with specific substantive and legal information.14. Su!!ary &ury rial  is a formal but abbreviated trial involving a presentation by the disputing parties to a panel of #urors. his process $realitytests$ the case with a non%binding #ury verdict to encourage the parties to negotiate for a settlement based upon their new assessment of litigation ris*. 17. ybrid A%#  is any creative adaptation of ADR techniques for dispute resolution. ADR has found its niche as an ad#unct to traditional litigation because of the financial and emotional cost as well as the other aggravations of formal litigation. <rocesses leading to less litigation cost or ris* may be considered ADR regardless of the labels used to identify them. he distinguishing characteristic is that the techniques enable parties to acquire sufficient information to evaluate litigation ris* and voluntarily negotiate resolution directly with each other. he techniques can be applied in any sequence as long as the parties are moving in good faith toward resolution of all or part of a dispute. /dentical fact patterns with different parties may be resolved through different techniques and conversely identical parties with different fact patterns may successfully apply the same ADR techniques. *
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