ALTERNATIVE DISPUTE RESOLUTION (ADR)
It is important to identify the most effective dispute resolution procedure, taking into account the nature of the dispute and your client’s commercial
interest when advising a client on a dispute.
NEGOTIATION MEDIATION ARBIRATION MED-ARB THE NEUTRAL EXPERT CONCILIATION
3rd party intervention + EVALUATION/EXPERT DETERMINATION
No 3rd party 3rd party 3rd party Binding nature APPRAISAL/EXPERT 3rd party intervention
intervention intervention + intervention + (depends on the EVALUATION rd
3 party intervention +
no binding binding agreement between + binding no binding
determination determination parties) 3rd party intervention + determination determination
no binding determination
Communication A confidential Arbitration is a Med-arb, short Neutral evaluation, Expert Conciliation is a
process between and interactive legal process for for"mediation-arbitra (also referred to as determination is a dispute resolution
parties that is process in which the resolution of tion," is a hybrid neutral appraisal & dispute resolution process in which
intended to an impartial disputes outside dispute resolution expert evaluation) is a process in which an impartial third
reach a third party, of the court process that dispute resolution an independent party, known as a
promise or known as a system. combines elements process where a and neutral third conciliator, assists
agreement to mediator, of both mediation neutral third party, party, often an the parties in
the satisfaction facilitates In arbitration, a and arbitration. often an expert in the expert in a reaching a
of both parties. communication neutral third relevant field, is particular field, is mutually agreeable
and negotiation party, called an In med-arb, a engaged to assess and appointed to resolution to their
Starting point for between two or arbitrator or a neutral third party, provide an evaluation of resolve a specific dispute.
solicitors & their more parties panel of often referred to as the dispute. issue or dispute Conciliation shares
clients when who are in arbitrators, is the "med-arbiter," This process is typically between parties. similarities with
trying to resolve conflict. appointed to serves in a dual role used in situations This process is mediation, but
a dispute. The goal of hear the as both a mediator where there are commonly used in there are some key
mediation is to evidence and and an arbitrator. complex technical or situations where distinctions.
help the parties arguments factual issues in the dispute
reach a mutually presented by dispute. involves technical,
acceptable the parties scientific, or
agreement and involved and to Example: industry-specific
resolve their make a binding Legal Expert matters.
disputes without decision or Medical Expert
going to court. award. Engineering Expert
, DIFFERENCE BETWEEN MEDIATION AND CONCILIATION
MEDIATION CONCILIATION
ROLES OF THE THIRD PARTY ROLES OF THE THIRD PARTY
In mediation, the mediator facilitates communication between the In conciliation, the conciliator is more actively involved in proposing
parties and assists them in reaching a voluntary agreement. The solutions and terms for resolution. While still neutral, the conciliator
mediator typically plays a more passive role, guiding the negotiation may take a more directive role, especially if the parties are having
process without proposing specific solutions. difficulty reaching an agreement on their own.
LEVEL OF INVOLVEMENT LEVEL OF INVOLVEMENT
Mediation generally emphasizes the self-determination of the Conciliation involves a higher level of involvement by the
parties. The mediator helps create an environment for open conciliator, who may actively suggest solutions and work towards a
communication, allowing the parties to control the outcome of the resolution. This more interventionist role is a distinguishing feature of
resolution. conciliation.
VOLUNTARINESS
Both mediation and conciliation are voluntary processes, and the parties can choose to participate or withdraw at any stage. The goal is to
encourage a consensual and cooperative resolution.
CONFIDENTIALITY
Both processes often involve confidentiality, where the discussions and information shared during the resolution attempts are generally not
admissible in subsequent legal proceedings. This confidentiality promotes a more open and candid exchange of information.
NON-BINDING NATURE
In both mediation and conciliation, the outcome is generally non-binding.
The parties are not obligated to accept the proposed resolution, and it only becomes binding if they voluntarily decide to formalize the
agreement.
APPLICATION AND CONTEXT APPLICATION AND CONTEXT
Mediation is a widely used process in various contexts, including Conciliation is often employed in specific contexts, such as labour
family disputes, workplace conflicts, and commercial disagreements. disputes, where a more interventionist approach by the conciliator
may be necessary.
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