TYPES OF ALTERNATE DISPUTE RESOLUTION

There are 3 types of Alternate Dispute Resolution methods. They are:

 Mediation
 Arbitration
 Negotiation

MEDIATION
Mediation is facilitated negotiation, by a third party. Mediators’ role is to assist parties to
agree on a solution. Mediation is a consensual process in which disputing parties engaged the
assistance of an impartial third-party mediator, who helps them to try to arrive at an agreed-
on resolution of the dispute. Mediation is a type of ADR methods, of which, the purpose is to
facilitate negotiations between the disputants so as to enable them to resolve their disputes. It
is a voluntary, non-binding private dispute resolution process in which a neutral person helps
the parties to reach amicable settlement of their disputes. It requires the direct participation of
the third party mainly to encourage the disputants resolve their differences themselves. Legal
rules may be relevant to mediation but not mandatory. It is just one of the factors to be
considered in the process but more importance is accorded to the subsisting relationship and
interest of the parties. That is why mediation is suitably adopted in the resolution of conflicts
of a sensitive and confidential nature where the disputants would wish to settle them in
private rather than in public, as required in litigation.
ARBITRATION
Arbitration is done by a neutral third party. It is a quasi-judicial function. Parties agree to
submit to arbitration and to be bound by the result. Arbitration is an adjudicative process.
Arbitration is also a form of litigation and as a form of ADR. Some literature refers to
Arbitration more as akin to litigation as a form of ADR. Parties who have failed to negotiate
or mediate may refer their dispute to arbitration. The impartial arbitrator’s role is to make a
decision for the parties, which decision is intended to be final, binding and enforceable. Some
ADR processes are similar to adjudication, but are not binding; the non-binding nature of
such processes means they are not arbitration.1

1
World Academy of Science, Engineering and Technology International Journal of Humanities and Social
Sciences Vol:11, No:11, 2017, Alternative Dispute Resolution in the Settlement of Environmental Disputes in
South Africa, M. van der Bank, C. M. van der Bank
Arbitration is a non-judicial private dispute settlement method providing for a final and
binding resolution of the dispute, founded upon an agreement of the parties. Unlike judicial
officers the arbitrators, appointed as a result of an agreement between the parties, could
dispense with legal formalities and apply the procedural rules and the substantive law that
best fits the dispute before them within the framework of the arbitration agreement. The
binding nature of the process has been reinforced through international conventions, national
arbitration laws and the institutional arbitral rules which act as a fillip to the enforceability of
the arbitration agreement and the arbitral award. A survey of international instruments agreed
upon in the later part of twentieth century showed a dominant preference for arbitration over
judicial settlement in the environmental disputes.
The Vienna Convention on the Protection of the Ozone Layer, 1985, under which the
Montreal Protocol, 1992 was adopted, makes it imperative upon state parties to declare either
at the time of signature to the convention, ratification, or a later date, that they would refer all
unsettled disputes to arbitration or to the ICJ or both. The Convention on Biodiversity, 2002
opened for signatures at the Rio Earth Summit, 1992, has been viewed as a framework
convention for conservation and sustainable use of biodiversity with access and benefit
sharing as its primary goals. A detailed annexure, called annex II, details the methodology of
the dispute resolution through arbitration. An important feature of the arbitration rules in this
annex is that it allows any contracting party to intervene, with the permission of the tribunal,
in the proceedings. However, it does not make space for non-state parties. Biodiversity as a
domain has multiple stakeholders, and to restrict the access to arbitration only to the
contracting parties, as in states, would mean little service to the cause of protection of
biodiversity.