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Lecture Notes on ADR
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Lecture notes of 10 pages for the course BPTC at BPTC (-)
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Transcripts s4 civilNon-adjudicative ADR
• Processes which give the parties full control to choose terms on which they will settle their dispute
• Any other party assisting the parties to facilitate the resolution of the dispute won’t have that control
• Requires parties to put in more effort to resolve the dispute
Adjudicative methods
• Parties will be forced to accept a particular resolution of their dispute even if they do not like it
• Advantage = takes away the dispute + parties do not have to contribute much effort to bring that about
• Less control!
Parties always have a position in a dispute
§ Parties who want to resolve a dispute are keen to move their positions closer together, as if they were
reaching forwards, trying to shake hands.
§ A party's position will be most noticeable in the demands they make to the other side and in the way they
react to what the other side says to them.
§ Parties often decide to alter their positions, because they discover things that affect their confidence
about whether they are right.
§ They might soften or harden their position, making it easier or more difficult to reach across to the
other side for a resolution.
The most difficult cases of all are the ones where either or both of the parties get entrenched in their
positions.
§ You can’t reduce the distance between arguing parties who do that.
§ Parties with entrenched positions often fail to resolve their dispute between themselves. They end up taking
the dispute into a courtroom.
§ The reason they fail: a party won’t be listening to the other side, and they won’t be sharing whatever
information they’ve got.
§ Parties to a dispute can often be persuaded to come out of their trenches but there is still no guarantee
that they will communicate effectively
§ often the only way of getting them to communicate is by using facilitation: that usually
means the expertise and techniques used by conciliators and mediators.
As long as the parties to a dispute are willing to exchange information with each other, to listen, to answer each
other’s questions, there should be progress in resolving their dispute, so that becomes narrower, and
then perhaps resolved altogether.
, Facilitation
It resolves the dispute by getting parties to communicate through a facilitator
1) Parties often misunderstand what the dispute/substantive issues is about esp if it arises v suddenly
and involves many people
à the argument will then be going round in circles – not in the direction of resolution
2) Early stage disputes are often confused disputes
à messages back and forth will have missing details
Communication
• Issue = in the face of a dispute, parties start to act defensively and not trust the other party, second guess + think
how to outsmart
• Communication will be disrupted – dispute will not be resolved
• It is necessary to resolve how to make the dispute go away, especially if parties are blaming each other for what
has gone wrong but still want to settle the dispute w/o litigation
o Parties will need to see all the info the other side relies on (which will be evidence if it proceeds to trial)
• If this info isn’t shared, neither side will have an accurate pic of how sensible their position is, and
whether it should be altered
Concilliation
Non-adjudicative process where a conciliator facilitates the resolution of a dispute, resulting in a settlement
- General term for various processes that encourage parties away from any entrenched positions, to listen to each
other and be open to settlement options
What happens?
An independent 3P, a conciliator, facilitates a discussion, which means asking questions the parties want answers to,
and other questions that neither party may even have thought of to give the parties greater understanding of why the
other side is unhappy.
The conciliator might suggest some basic terms for a resolution, which the parties can then refine between themselves,
with the conciliator’s guidance.
Effect
Those Qs often enable a conciliator to evaluate the parties’ current positions, inviting them to consider how
justified they are in the approach they have taken so far.
• its usually possible for a conciliator to help the parties map out their dispute, and to see that actually
there is plenty of common ground, facts that they agree on.
BUT parties don’t have to adopt what the conciliator suggests
- if they do, they will sign an agreement that will bind them as a contract, to comply with those terms when the
conciliation is over
Advantages of conciliation
1) discussions confidential
- desirable in commercial contexts
- or if it goes to court – judge not permitted to know what was said during the unsuccessful attempts to settle due to
without prejudice principle
2) parties are in control + outcome isn’t dependent on law
- range of solutions that can be chosen from – wider than what judge can provide
o e.g., not just money, can be providing goods/services/apology to other party
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