ADRs
or Alternative Dispute Resolution procedures
ADRs or Alternative Dispute Resolution procedures refers to the different
methods to resolve disputes other than litigations. Among the various
forms of ADRs, negotiation, is by and large, the most common one adopted
before other ADR protocols are being considered. The general trademarks
of these ADRs are the confidentiality of proceedings, party
autonomy and the independence & neutrality of the tribunal.
Arbitration
Arbitration is a consensual process by which the parties of a dispute
submit their differences to one or more impartial parties for a final
and binding decision. Being an orderly proceeding, arbitration is substantially
less formal than court proceedings with hearings conducted in private.
Parties are free to choose their own arbitrator or arbitrators, rules
and procedures. Parties can also decide on the venue of their arbitration.
Confidentiality is ensured and the disputes are expeditiously resolved
in a practical manner. It is an alternative to dispute resolution by litigation
in a court of law.
Adjudication
Adjudication is commonly known in other jurisdictions (UK and New South
Wales) as the mandatory "first-tier" ADR. The independent adjudicator
provides a final and binding decision unless and until it is revised by
the eventual tribunal (court or arbitration). Normally conducted on paper
without a full hearing, the adjudicator is given a relatively shorter
time frame to reach a decision on the dispute.
Mediation
(or Conciliation)
Mediation is a voluntary, non-confrontational and binding process using
a neutral party to guide the parties towards a mutual beneficial resolution
of their dispute. It is more popularly adopted in family and community
disputes. The confidentiality, cost effectiveness and time efficiency
are among the advantages. The outcome of a settlement is not bound by
judicial constraints (i.e., the settlement may include terms beyond the
issues arising out of the underlying contract.) When settlement is reached,
the mediator prepares an agreement which subsequently becomes a legally
binding contract.
Med-Arb
Med-Arb is a hybrid form of mediation and arbitration - mediation is encompassed
within the arbitration process and the mediator may also become the arbitrator
with the express consent of the parties. In the event a settlement is
reached during the mediation phase, the settlement may be recorded as
a consent arbitral award. However, if the parties fail to reach a settlement,
they may opt for the same mediator to act as their arbitrator if they
do not wish to appoint a new arbitrator.