Alternative Dispute Resolution is a voluntary process where parties appoint a neutral third party to aside disputes between them, other than going to the court. This process is usually private.
There are many forms of ADR. Mediation and Arbitration are by far the most frequently used forms of ADR. Other ADRs include inquiry, good offices, negotiation, conciliation.
Mediation
Mediation involves the use of a third party, whether that is an individual, a group of individuals, or an organisation, to encourage the contending parties to come to a settlement. A mediator takes an active role in mediation. He or she will seek to cajole disputing parties into accepting his or her own proposal. The mediator will also have the responsibility of attempting to reconcile different claims and improve the atmosphere of the discussions.
Arbitration
This is a process whereby the disputing parties appoint a panel of arbitrators, who may be judges, lawyers or experts in that area, to render a binding decision on their legal dispute. This is a private procedure. Unlike litigation, arbitration does not have compulsory jurisdiction. Parties must agree to submit the dispute to arbitration. Parties have the freedom to choose the seat of arbitration.
Hong Kong remains to be a popular choice for arbitration. According to the 2021 Queen Mary University of London and White & Case International Arbitration Survey (Survey), Hong Kong International Arbitration Centre is the third most preferred arbitration seat and arbitral institution in the world.
Good Offices
With the consent of the disputing parties, a third party will attempt to persuade the parties to enter into negotiations without necessarily proposing any solutions. Many international organisations offer this type of service to many companies, including large, small and medium enterprises, such as the World Intellectual Property Organization “WIPO”.
Negotiation
Involves a discussion between interested parties, without any third party involvement, with a view to reconcile divergent opinions, or at least understand the different positions maintained by the parties that are in dispute.
Conciliation
An independent third party will be empowered by the disputing parties to make recommendations that intend to facilitate negotiated solutions that are acceptable to parties.
Inquiry
An independent party will be recruited to make a determination of matters of fact. The outcome of such an investigation may help parties to proceed to a negotiated settlement.
Key Takeaways
- There are many various forms of alternative dispute resolutions, namely, Mediation, Arbitration, Inquiry, Good offices, Negotiation, and Conciliation.
- Mediation and Arbitration are the most frequently used forms of alternative dispute resolution.
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