Leveraging ADRs (6) for Effective Dispute Resolution: Exploring the Drawbacks of Other ADR Tools Asking for a Practise Role.

The Others at the Toolbox: Nuances when Addressing for a Chance in the Match.

[Revised Oct, 24 2024]

Beyond the commonly known ADR tools such as arbitration, mediation, and conciliation, several other dispute resolution mechanisms exist that, while less frequently discussed, warrant close examination. Some are highly specialised and tailored for specific contracts, yet they offer distinct avenues for resolving disputes. This prompts a fundamental question: should we critically analyse the disadvantages of these lesser-known ADR tools in addition to the well-known ones? The answer is unequivocally yes.

Apart from the three mentioned, several alternative dispute resolution mechanisms present unique challenges that can impact their effectiveness. To fully understand the limitations of these methods, a broader exploration is necessary. While each tool offers distinct benefits, mechanisms such as negotiation, collaborative law, and summary jury trials carry specific disadvantages that deserve critical attention. For instance, power imbalances can undermine negotiation, where one party possesses significantly more leverage, potentially resulting in inequitable outcomes. Similarly, collaborative law, although designed to foster cooperation, can be time-intensive and demand a high level of commitment from both parties, which may not always be practical. Lastly, while intended to expedite the resolution process, summary jury trials often come with the trade-off of reduced deliberation time, which may lead to less comprehensive decisions."

You will not read much about Collaborative law in this post or the series of posts about ADR tools' disadvantages and suitability when You will not read much about collaborative law in this post or the series of posts about ADR tools' disadvantages and suitability when discussing and solving controversies in an agreement; it was planned to be part of a different and respective one in this website section. I think you will have the chance to enjoy this theme shortly. Discussing and solving controversies in an agreement was planned to be part of a different and respective one in this website section. I think you will have the chance to enjoy this theme shortly.

There is another question regarding some of these other ADR tools: Why were they not requested more for ADR processes? Well, there is no unique reason for that. Tendencies, cultural preferences, tradition and practical ignorance about their advantages may overshadow some ADRs. In contrast, others never cease to be on the lips of conflict management professionals. Market tendencies are also part of all this. Nor can it be categorically stated that this type of decantation does not correspond to effective filtering. Biases—motivated or not—also skew fair decisions. Now, it could also be relevant to analyse whether explanations could be offered about the fact that not-so-frequent ADRs are precisely like this: infrequent in the routine of dispute resolution. A brief exploration of this issue will be incorporated into each ADR, answering that question with my view. Don't hesitate to comment if you disagree.

In general, while beneficial in specific contexts, these other tools may also lack the formality and enforceability of more established ADR methods, potentially leading to issues with compliance and long-term resolution. Evaluating these disadvantages helps to make informed decisions about the most appropriate dispute resolution mechanism for a specific situation. So, then, here are a few other ADR tools different from Arbitration, Mediation or Conciliation, along with their particular disadvantages:

1. Negotiation

Negotiation, to say it short, is a direct discussion between parties to resolve a dispute without the involvement of third parties. In most cases of direct negotiations, there is a singular form of negotiation pushed by a third neutral party, labelled as assisted negotiation, which is very closed to mediation, conciliation or -even- an expert decision, but well enough if there were any controversial topic/s about to discuss whose performance would well require from surveillance or explanations by specialists. Now, returning to the general scope of negotiation:

Disadvantages:

- Power Imbalances: If there is a significant power disparity between the parties, the stronger party may dominate the process and secure a more favourable outcome.

- Lack of Structure: Negotiations can become unproductive or confrontational without a structured process or third-party facilitator.

- No Third-Party Insight: The absence of a neutral third party means no one can offer objective insights or facilitate communication.

- Potential for No Resolution: If parties are entrenched in their positions, negotiations may fail to resolve the dispute, leading to further conflict or the need for additional ADR methods.

Why It Wasn't Highlighted More?:

- Common and Informal: Negotiation is the most basic form of dispute resolution, often occurring before considering formal ADR methods. The parties are assumed to attempt to negotiate before escalating to other methods.

2. Mini-Trial

A mini-trial is a structured settlement process where each party presents its case to a panel, typically composed of senior management from each side and a neutral advisor.

Disadvantages:

- High Costs: The process can be expensive due to the need for preparation similar to a trial, including legal fees and the cost of a neutral advisor.

- Time-Consuming: Preparing for a mini-trial can be time-consuming, and the process itself can be lengthy.

- Non-Binding Nature: The outcome of a mini-trial is not binding, which means parties might still need to pursue litigation if they do not reach an agreement.

- Complexity: The process can be complex and may not be suitable for all types of disputes, especially those requiring swift resolution.

Why It Wasn't Highlighted More?:

- Less Common: Mini-trials are less commonly used than mediation or arbitration and are typically reserved for complex business disputes.

3. Summary Jury Trial

Similar to the previous one, a summary jury trial is a shortened trial that results in a non-binding jury verdict intended to facilitate settlement negotiations.

Disadvantages:

- Non-Binding Verdict: The jury’s verdict is advisory and not binding, so parties may still need to go to trial if they do not settle.

- Preparation Required: Despite being shorter, preparation for a summary jury trial can be nearly as intensive as for a full trial.

- Costs: The costs can be substantial, involving legal fees, jury fees, and other trial-related expenses.

- Limited Usefulness: This method may only be suitable for some cases, mainly when the parties are willing to negotiate based on an advisory verdict.

Why It Wasn't Highlighted More?:

- Advisory Nature: The non-binding nature of the verdict can limit its appeal and effectiveness.

4. Early Neutral Evaluation (ENE)

ENE involves a neutral evaluator who assesses the strengths and weaknesses of each party's case early in the dispute. It is also similar to the case of assisted negotiation mentioned above.

Disadvantages:

- Evaluator Bias: The evaluator's perceived or actual bias can undermine the process's credibility and effectiveness.

- Non-Binding Nature: The evaluation is advisory and not binding, so parties may not accept the evaluator’s assessment and may proceed to litigation.

- Costs: Although generally less expensive than full litigation, ENE can still be costly, mainly if the case is complex.

- Limited Influence: ENE's effectiveness relies on parties' willingness to consider and act upon the evaluator’s assessment, which may not always happen.

Why It Wasn't Highlighted More?:

- Advisory Role: Unlike mediation, ENE provides an early, non-binding assessment, which might need to be more decisive for many disputes.

5. Med-Arb (Mediation-Arbitration)

Med-Arb combines mediation and arbitration, starting with mediation and, if unresolved, moving to arbitration.

Disadvantages:

- Role Confusion: If the same person serves as mediator and arbitrator, there can be role confusion and potential bias, as the mediator may be privy to confidential information that could influence the arbitration.

- Process Complexity: Med-Arb's dual nature can make the process complex and challenging to manage.

- Inconsistent Approaches: The skills and strategies practical in mediation may need to align with those required for arbitration, potentially leading to inconsistent dispute handling.

- Pressure to Settle: Parties might feel pressured to settle during mediation to avoid arbitration, leading to suboptimal agreements.

Why It Wasn't Highlighted More?:

- Complex Dual Role: Mediation and Arbitration can be complex, and transitioning between roles might lead to perceived bias.

6. Ombudsman

An Ombudsman investigates complaints and attempts to resolve them through recommendations or mediation. In some countries, it is a public institution that broadly connects political institutions (Governments, Parliaments, Local authorities) with the Citizenship's demands (organised or not).

Disadvantages:

- Limited Authority: Ombudsmen typically do not have the authority to enforce their recommendations, relying instead on the parties’ goodwill to implement solutions.

- Perceived Lack of Impartiality: In some cases, the ombudsperson’s association with an organisation can raise concerns about impartiality.

- Confidentiality Concerns: The need to maintain confidentiality can limit the transparency of the process and the ombudsperson’s ability to disclose findings.

- Scope Limitations: The jurisdiction and scope of an ombudsperson’s authority can be limited, reducing their effectiveness in resolving certain types of disputes.

Why It Wasn't Highlighted More?:

This latter institution deserves a more comprehensive explanation: The Ombudsman often isn't highlighted more as an ADR tool because its prominence and effectiveness vary significantly by country, influenced by whether it is institutionally supported as a public policy. In some nations, the Ombudsman has a well-established role with substantial authority and public trust, effectively addressing grievances and promoting fairness. However, the institution may lack the same recognition, authority, or independence level in other countries, limiting its impact and visibility as a dispute resolution mechanism. Additionally, the weight of tradition plays a crucial role; countries with longstanding reliance on other ADR methods or formal legal systems may not fully integrate or highlight the Ombudsman within their dispute resolution frameworks. This variability in institutional support and tradition affects how prominently the Ombudsman is regarded as a viable ADR tool or a time-consuming lever.

As it was said in a previous post about this series, the Adjudication and Dispute Board belong to a particular contract framework whose idiosyncratic core is settled on being a type of agreement characterised by long-lasting development for finalising their respective duties between the parties: construction, infrastructure, public concessions, etc. (It also depends on the legal jurisdictions where such a particular agreement and set for resolving potential disputes operates). In any form, both kinds of ADT tools will have their respective analyses and expositions in their post or series of posts to discuss on this website. I hope you'll enjoy this, and they will both do so.

And trying now to be fair and balanced, as you have read, while various ADR tools offer valuable alternatives to litigation, each has its disadvantages. These include issues related to non-binding outcomes, power imbalances, costs, preparation requirements, and potential biases. Understanding these disadvantages helps parties choose the most suitable ADR method for their dispute and better prepare for possible challenges. Then, is it not a matter of selecting the item most promoted among the public, practitioners, or most publicised in the markets, but the one most suitable to match the conflict and the parties involved? From this point of view, introducing commitment clauses too cheerfully but for inadequate reasons does not facilitate but harms the prevention, management, and resolution of disputes in contracts, so before solving the problems presumed to be on the horizon, they may sometimes perpetuate them.

There is no fixed rule for knowing where an absolute and incontrovertible success lies. Still, it is possible to start by not assigning as a remedy what is not authorised to remedy the conflict that may have unravelled. It is the practitioners' skill to apply the appropriate remedy for the parties' disagreements.

To conclude this post series, I will address the final topic: the ADT tools analysed in these posts and face the three types of conflicts considering the parties' shapes since a Cost-benefit Analysis of Suitability [conflict among private parties, conflicts among private and public parties, and conflict among (direct or indirect) public parties], and which ADR tool better fits (in my opinion), despite not being the only option to engage with to mitigate or resolve the dispute, concluding with what Taxonomy might be established for the ADR Toolbox: I hope consider making the best possible decision when dealing with disagreements through this cost-benefit analysis helps readers.

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