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Alternative Dispute Resolution As mentioned earlier, ADR is the use of techniques other than litigation, to resolve conflict. Some people suggest that ADR should stand for "appropriate" dispute resolution, because although litigation is used to excess in the United States, it is not appropriate for every dispute. There are many options besides litigation to deal with conflicts. They include negotiation, facilitation, mediation and arbitration. Negotiation is the key process used to some extent in almost any ADR technique. Negotiation is both a separate process as well as one which is imbedded in the other techniques. Negotiation is the process that two or more parties use to come to an agreement, whether or not there is the perception of a conflict. There are no "official, standard" rules about how to negotiate, although there is a lot of propaganda surrounding the concept. In win-win negotiation there are no "secret weapons" other than to try to make sure that all parties are satisfied. In short, whatever the parties to the negotiation agree is fair is what the outcome will be. There are no rules about where a negotiation should take place, how long it should last and who speaks first. The parties have total control over the process and the outcome, and that is its main attraction. Facilitation is the process used to help others with an aspect of group process such as decision making, strategic planning or team-building. A facilitator is typically an outsider who is not involved in the ongoing group activities, but occasionally a group member can serve this function as well. As in negotiation, there are few rules, but the parties have given up some control. The group is no longer completely in charge of the process. The facilitator may be an expert in some form or style of decision making, although the outcome is usually within the total control of the group. Facilitation is appropriate when a group seeks to take on new directions and needs everyone who is a member of the group to be able to participate fully in the group. Facilitation is usually chosen when there are no apparent conflicts within the group or specific positions in a conflict have not emerged. Mediation is the process used to help two or more parties come to an agreement. Typically the parties have tried to negotiate on their own, but it has not been successful. At this point, a conflict has escalated and the parties have specific opinions and positions about what should be done to resolve the conflict. The mediator is a neutral third party who assists the conflicting parties to arrive at an agreement through negotiation. "Neutral" means that the mediator has no investment in the outcome that is reached, but he or she does care that the process is fair and that it is followed. The mediator typically sets the stage and ground rules for the working sessions, controls the communications, separates the parties if needed, clarifies any vague aspects of a tentative agreement, leaving the parties free to participate fully in the discussion. A mediator may suggest that participants brainstorm ideas, or argue for each other's positions for example, which are things that two people negotiating for their own interests would have a difficult time doing. A mediator is a process expert. The parties have complete control of the outcome, but less control of the process. In this way, mediation and facilitation are similar processes, except that mediation usually involves the presence of a well-defined conflict, and facilitation does not. Arbitration involves the use of a neutral third party (usually an individual, sometimes a panel of three or five persons) who makes the decision for the conflicted parties. The arbitrator has control of the outcomes, and control of the process to the extent that the parties have given him or her control. For example, Mr. Jones and Ms. Smith have been unable to come to an agreement in mediation. In developing the agreement to mediate, they decided that they would submit their problem to arbitration if they were unsuccessful in reaching an agreement through mediation. They then follow the process they had developed to find an arbitrator and give him or her the guidelines they want to follow in the process of arbitration. If the parties have no specific wishes in terms of how the process should occur, the arbitrator will typically offer rules or guidelines h/she has used in the past. The American Arbitration Association offers guidelines for the mediation and arbitration of all kinds of disputes, and they are available at www.adr.org There are two types of arbitration, binding and non-binding. Binding arbitration means that the parties have agreed, in advance, to be bound by the arbitrator's decision, regardless of the outcome. Binding arbitration agreements are not appealed or overturned, except in very limited cases, such as incompetence of the arbitrator. Non-binding arbitration is more advisory. The parties can agree to accept the decision or not, as they see fit. It is important that the parties understand whether the arbitration is binding on non-binding before agreeing to participate. Consultation with an attorney regarding binding and no-binding arbitration in the state in question is advisable. Of the forms of ADR presented, arbitration most closely resembles the process of litigation, but there are some important differences. The process of discovery is significantly limited in arbitration, thereby shortening the time involved. The procedures for the arbitration hearing are much less formal than the courtroom. Table 1. ADR
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