UAD 2612 – ALTERNATIVE DISPUTE

RESOLUTION
(TUTORIAL 1: ADR – CONCEPT &
SELECTED PROCESS)
1. Discuss the Philosophy and Concept of ADR
PHILOSOPHY
 Win-win Approach – Confucianism
“a better way to resolve dispute is through
persuasion and compromise rather than by
coercion through a sovereign authority.”
- This philosophy is reflected in ADR, where
parties try to resolve their disputes in a
consensual manner
- Unlike in the Adversarial trial system; lawyers - covers divergent processes ranging from
thinks in terms of ‘RIGHTS’ and not in terms of
‘INTERESTS’
 Integrative Approach
- ADR integrates parties and provides them with
an opinion to continue their relationship on the
basis of a sharing interest
CONCEPT
- dispute resolution processes and techniques
that fall outside the court system
- a broad concept; including:
o Negotiation
o Mediation/ Conciliation
o Arbitration/ Adjudication
facilitated settlement negotiations in which
disputants are encouraged to negotiate
directly with each other prior to some other
legal process
2. Discuss the Evils of Litigation
• Time-consuming
• Results in backlog of cases
• Complicated – Parties need to go through many steps and stages
before the trial starts
• Costly & uncertainty of the period of time that a trial might use will
raise the expenses from time to time
• Adversarial – Less regard to fair solution; results in win-lose scenario
& not a mutually acceptable decision
3. Briefly Explain the Components of ADR below:
NEGOTIATION
- bilateral negotiation between two -
disputants (third party is not required)
- resolving a dispute through discussion
- identification of issues by parties to see
whether they can find a common
definition of the situation and whether
they have shared interest in solving them
- identified issues are assembled in a -
comprehensive list to be used as the
agenda of the negotiation
MEDIATION
a mediator helps two people negotiate
voluntary solution to their dispute
- mediator has no authority to make any
decisions that are binding on them, but
uses certain procedures, techniques and
skills to help them to negotiate an agreed
resolution of their dispute without
adjudication
3 types: facilitative, evaluative and
transformative
3. Briefly Explain the Components of ADR below:
CONCILIATION
- Involves an independent conciliator -
who facilitates communication between
the two disputants
ARBITATION
parties present arguments and evidence to an
independent third party, the arbitrator, who
makes a determination

- particularly useful where the subject matter is

- Conciliator usually consider the position
of each party and, unlike in mediation,
may offer their opinion as to the merits
of each argument and recommend a fair -
outcome
- up to the parties to decide whether to
agree to any proposals. If a settlement is -
achieved, it must be set out in writing in
order to be legally binding
- at the end of the process the arbitrator will
highly technical, or where the parties seek
greater confidentiality than in an open court
disputants need to agree before the process
that the arbitrator's decision will be binding and
enforceable
arbitrator may be a specialist in the subject
matter of the dispute or have legal
qualifications
make a decision for the parties
4. Discuss the Applications of Mediation under:
FACILITATIVE EVALUATIVE TRANSFORMATIVE
- mediator structures a - mediator studies the - mediator meets with
process to help the strengths and weaknesses disputants and usually leads
disputants to reach a mutually of the disputants' positions each party to understand the
agreeable settlement and makes suggestions for outcomes that are wanted
resolving the dispute by the other party
- mediator is merely in charge
of the process while the - mediator controls the - mediator tries to avoid
parties are in charge of the process & directly shaping issues, proposals
outcome influences the outcome of or terms of settlement, or
mediation even pushing for the
- disputants enjoy self- achievement at all
determination, that is, they - mediator provide some
are in control of resolving guidance as to the - mediators encourage parties
their own dispute appropriate grounds for to define the problems and
settlement based on law, find solutions for
- mediator neither makes industry practice or own themselves
recommendations to the experience
disputants nor gives advice
 1. 5.
Agreement to mediate
Holding joint and private
meetings
2.
joint meetings or causes with
5. Explain Presence of disputants
without their involvement the need
each side should be conducted
in a site or a place where
the Elements for mediation does not arise
neutrality can be maintained
and confidentiality preserved
of Mediation 3.
Presence of disputants without
their involvement the need for 6.
mediation does not arise
Mediated settlement to be
signed by the parties to
4.
make the contract
Finding 'options' which are enforceable
mutually acceptable by the
disputants If a fair and mutually
mediator to act as opener of acceptable settlement
communication channels, agreement is concluded then
legitimiser, process facilitator, the the mediation process will
trainer, resource expander and successfully end
problem explorer