Article by April 2019 Batch of Professional Executive Master in Alternative Dispute Resolution (PEM ADR) at Institute Of Paralegal Training And Leadership Studies(IPLS), Ghana
In this article we sought to explore the person called an ADR Practitioner. We started by looking at some concepts associated with ADR and how it has evolved over the years. We also examined the reasons for the rise in the deployment of ADR in many dispute resolutions and the need for the ADR practitioner. Examining the reasons led us into exploring the various processes that come under the ADR Practice. Principles for effective ADR practice were also looked at. We rounded off by looking at the ADR Practitioner- the qualities, skills, and competencies needed for effectiveness and their contributory roles in the society at large.
Dispute in its simplest form means disagreement. According to the Cambridge Dictionary, dispute is synonymous with words such as argument, controversy, variance, dissension, conflict, disputation, strife. Dispute then is difference in pinion, viewpoint, position or purpose that frustrates someone’s goals or desires. It is a human phenomenon. We cannot co-exit as humans without disputes. They are everyday life experience. Whenever there is a dispute, there is somewhat an expressed struggle between interdependent parties who perceive incompatible goals, scarce resources, and interference in the pursuit of their goals. This stirs up the need for resolution for peaceful and cohesive society.
Dispute resolution has always been with us. From the informal settings where two or more individuals seek a common understating of an issue to a more formal system of adjudication ADR has often being in practice. Dispute resolution is always about one party seeking justice. Over the years, individuals or parties had sought justice through the formal court system. Some however employed some of the processes of ADR consciously or unconsciously.
WHAT THEN IS ALTERNATIVE DISPUTE RESOULUTION (ADR)
Alternative Dispute Resolution is the process of resolving disputes other than court litigation. The term ‘Alternative” implies a departure from the norm, or denotes another possibility or choice. Thus, ADR is all the other possible processes or procedures for resolving disputes other than the formal court system.
ADR is a term that refers to several different methods of resolving disputes outside the traditional legal and administrative forums. ADR is an appendage to the legal system, rather than being in direct contrast to litigation.
ADR has gained prominence over the years because it has been observed that seeking compromise by moderating competing interests reflect the human preference for reconciliation over confrontation. ADR therefore works as alternative to litigation and avoidance of the adversarial way of resolving disputes.
WHY ADR IS GAINING PROMINENCE AND THE NEED FOR THE ADR PRACTITIONER
The boom in ADR and for that matter the ADR Practitioner in the 1970s and 1980s was of no surprise. This was spurred in large part by a rising dissatisfaction with litigation. Aside being exorbitant, time- consuming and acrimonious, it was evident that litigation could also be an enormous gamble.
Over the years research has shown that litigation is incapable of addressing societal needs in managing conflicts. Litigation is characterized by excessive delays. Because litigation has been the most used mechanism for dispute resolution, the courts are over burdened with cases, leading to delays.
Another case for the rise in momentum for ADR is the fact court hearings are public except under certain circumstances. Court room language can sometimes be mystifying such that parties who own the dispute do not understand the direction and progression of their cases.
In litigation, strict rules on procedures and evidence are the laws of the game. These rules are time bound and inflexible. Court rules do not allow evidence on emotional matters like injured feelings, resentments, anger or shame unless the nature of case calls for its inclusion. Litigation has become very costly in both financial and emotional terms. The high cost of litigation remains a threat to access to justice since the very poor and vulnerable unable to afford it.
In view of these setbacks in litigation, alternative ways of resolving disputes were seriously explored. This led to the adoption of new methods to supplement the work of the courts in ensuring speedy and efficient management of disputes. These new methods are what have been broadly termed ADR. This rise also led to the demand for the practitioner, vested with the skills of ADR.
The attractive force of ADR can also be attributed to the simple fact that it has something for everyone; an additional channel for the provision of access to justice, offers administrative relief for the courts and public agencies; a potentially quick, inexpensive and flexible avenue to resolve disputes and a growth in industry and an increasingly profitable business for the ADR practitioner and institutions.
The preference for ADR is often reflected in commercial contracts, where clauses that require parties to submit disputes to mediation or arbitration before engaging in litigation are becoming increasing popular.
FORMS OF ALTERNATIVE DISPUTE RESOLUTION MECHANISMS EMPLOYED BY THE ADR PRACTITIONER
ADR covers a variety of evolving devices and mechanisms. Indeed, they continue to expand as society gains a better appreciation of the nature of disputes. From the traditional methods of dispute resolution, society is reorganizing more and more of those processes which attempt, first and foremost, to reconcile the interests of the parties. A brief description of each process in the spectrum is discussed as follows.
Negotiation is any form of communication between two or more people for the purpose of arriving at a mutually agreeable solution. In a negotiation, the disputants may represent themselves or may be represented by a negotiating agent or agents. The people involved in the negotiation, maintain control over the negotiation process.
Among the meditative processes, mediation is the most popular. The other processes under the umbrella are conciliation and consensus building. Mediation is a non- binding process in which an impartial third party, called the mediator, facilitates the negotiation process between the disputants. As the mediator has no decision- making power, the disputants maintain control over the substantive outcome of the mediation.
An ombudsman is a person who investigates complaints against public authorities and comes up with a non-binding recommendation. The ombudsman does not interfere with matters which are justifiable before the courts although there are calls for their role to be expanded.
Evaluative processes have one principal aim: to provide the disputants with feedback on the merits of their cases. Such objective, non-binding, confidential evaluation by a neutral third party comes in handy in further settlement negotiations.
The private mini-trial is usually used in complex commercial disputes between companies. The format may vary and can be determined by agreement between the companies. The essence is that mini-trial usually involves the summary presentation of each disputant’s case before a panel consisting of decision makers from each of the companies and a neutral third party. The representatives of the companies often have not been personally involved in the dispute or attempts of settlement. The advantage is that they are then able to bring fresh perspectives to the dispute.
A pre-trial conference is similar to a judicial mini-trial, through less formal. Typically, counsel for the disputants present an overview of their respective clients’ cases and may refer to the evidence upon which they would rely at the trial. The pre-trial judge frequently provides a non- binding opinion as to how the case would likely be resolved at the trial. The disputants themselves are encouraged to attend the pre-trial conference.
If disputants cannot agree as to which one of them would be successful at arbitration or trial, they may retain a respected neutral third party to provide them with an EARLY NEUTRAL EVALUATION (ENE). The disputants and their counsel present their cases to the evaluator, who then provides an opinion about the likely outcome of the case and whether to proceed to arbitration or trail. This opinion may be presented to the parties jointly or privately to each party. Unlike a pre-trial conference, ENE usually occurs early in the dispute, generally upon the filing of response. This process also forces the disputants to confront their case, narrow down the issues for resolution and develop a speedy disclosure process and, where possible, effect a settlement. Even where a settlement fails, it is said that ENE is useful because it helps the parties to establish time limits for the administration of the case.
Arbitration is a process in which a neutral third party, or an odd- numbered panel of neutrals, renders a decision based on the merits of the case. The parties to an arbitration can maintain some
control over the design of the arbitration process. In some situations, the scope of the rules for the arbitration process are set out by statute or by contract. In other circumstances, the parties work together to design an arbitration process which is appropriate to their dispute.
As the name suggests an administrative hearing takes place before an administrative tribunal. Such tribunals are established by statute and have the power to enforce certain statutes. Generally, procedural rules are more relaxed at a hearing, contrasted with civil or criminal trials, though they are often more formal than arbitration. The big difference between an administrative hearing and an arbitration is that in the former, the parties cannot select the members of the tribunal and cannot set the procedure rules.
Summary jury trial process is an avenue, that of a trial, to satisfy the desires of those disputants who insist on their day in court. This process saves time and money for the parties. It involves the presentation of an abbreviated version of the evidence to an advisory jury. That evidence is the summary of the case for each party. Attorneys may present closing arguments based on the abbreviated evidence.
Another form of ADR is evaluation process. In this case the judge will merely point out to the lawyers and litigants the strength and weaknesses of the case. This assessment is based, in part, upon past judicial experience. As with other types of case evaluation, the parties may engage in dialogue to gain additional feedback. They are then free to accept or reject the evaluation. Judicial evaluation may also take place in less formal setting, such as when the judge presides over may be used to promote a quick resolution of a dispute.
Rent a Judge. Under this process, the parties usually utilize the services of a retired or formal judge who hears the case and renders a decision. The parties select and hire a private neutral party to try the case, just as it would be in a court of law. The rules of evidence are followed strictly, including the application of strategy and precedents. The decision of the private neutral party is treated as judgment of the court. A fee is normally payable to the retired judge. While this has led to legitimate criticism that this type of process is only available to the rich and wealthy, it is acknowledged that considerable successes achieved from the use of this procedure, compared with the usual litigation process.
Combined processes or Hybrid processes. As ADR processes have developed over the years, the inherent flexibilities in the system have led to a combination of processes to suit the nature of the dispute. The most common combined processes are the mediation/arbitration.
PRINCIPLES OF EFFECTIVE ADR ADMINISTRATION
The key for ensuring effective ADR practice is underpinned by the doctrine of neutrality. Neutrality demands that the Practitioner lives above all biases, prejudice, emotions, and partisanship to administer the processes professionally. The resolution of dispute can be said to have been achieved when the claimant is satisfied with the result, or all parties are satisfied with the result (which is a just result) through a fair process. The key words here are JUST RESULT from a FAIR PROCESS.
Another principle for effectiveness is that ADR should be voluntarily accepted or opted for, by the parties. Disputants must necessarily volunteer to use ADR to resolve their differences. ADR thrives under the principle of self-determination of the disputants to use legally accepted procedure to resolve their differences other than litigation. No one is coerced to enter into ADR. ADR process is mandatory only if there is an express clause in a contract to the effect that ADR should be sought in the event of a dispute. This does not mean the parties are forced into it, but they are simply called to respect a prior voluntary agreement to use an ADR mechanism as an alternative dispute resolution.
ADR processes are private and confidential. Practitioners of ADR are bound by their code of ethics to preserve the privacy of their clients. ADR proceedings are most often done behind closed doors. In many cases, the parties involved in the process have to sign an agreement, to keep the proceedings confidential and private unless permitted by law to do otherwise.
QUALITIES OF AN ADR PRACTITIONER
From the above, one can infer that an ADR practice is a Multi-tasked job. The roles of the ADR Practice has dimension depending on the process deployed.
The ADR practitioner is a person trained and certified in the principles, knowledge, skills and forms of ADR. Certification here implies recognition by the relevant laws of the land. The role the ADR practitioner plays demands a person with effective communication skills, a good listener, a patient, critical thinker, respectable and above all impartial and independent minded.
The ADR practitioner is a neutral third party who assists disputing parties to resolve conflict or dispute. They could be termed facilitators, mediators, arbitrators, conflict coaches or workplace conflict coaches, depending on what role they play.
The ADR practitioner represents an important part of the ADR “eco-system“ and these include the disputing parties, representative for the parties, and neutral third parties involved in the ADR, such as mediators, members of the arbitral tribunal, and experts appointed in expert determination. The high standards to which they perform ADR-related services and conduct themselves in ADR processes are important in instilling public confidence in the ADR program.
The ADR Act 2010 (Act 798), sections 12 and 66 provide that, an ADR practitioner can be a mediator or arbitrator or an institution appointed based on the qualification agreed by the disputing parties.
“Section 12, Qualification of arbitrator
- An arbitrator shall be a person appointed by the parties or by a person or institution acting under a power conferred by the parties and may be a person with the experience or qualification that the parties may agree
- A person without experience or qualification relevant to the subject of the dispute may be appointed an arbitrator if the parties so
- A person of any nationality may be appointed an arbitrator unless otherwise determined by the
- In appointing an arbitrator, the parties, the person or the institution vested with the power of appointment shall have regard to
- the personal, proprietary, fiduciary or financial interest of the arbitrator in the matter to which the arbitration relates;
- the relationship of the arbitrator to a party or counsel of a party to the arbitration;
- the nationalities of the parties; and
- other relevant considerations to ensure the appointment of an independent and an impartial
- A person appointed an arbitrator shall before acceptance, disclose to the parties or the appointing authority any information likely to affect the neutrality of the arbitration, particularly with regard to that arbitrator’s interest in any case involving the
Section 66, Appointment of mediator
- the parties to a mediation may appoint any person or institution the parties consider acceptable to serve as a
- Parties may request the assistance of a suitable institution or person in the appointment of a mediator and may in so doing request the institution or person
- to recommend the names or provide a list of suitable persons to serve as mediator; or
- to conduct the ”
THE VARYING ROLES OF AN ADR PRACTITIONER
The role of an ADR practitioner comes in different forms depending on the process being deployed. The ADR practitioner could be playing Facilitative, Advisory, Determinative or quasi- adjudicatory or Transformative role as explained below:
In this role, the practitioner structures a process to assist the parties in reaching a mutually agreeable resolution. The practitioner asks questions; validates and normalizes parties’ points of view, searches for interest underneath the positions taken by parties, and assists the parties in finding and analyzing options for resolution. The practitioner does not make recommendations to the parties, give his or her own advice or opinion as to the outcome of the case, or predict what a court would do in the case. The practitioner is in charge of the process, while the parties are in charge of the outcome.
Under this role the practitioner wants to ensure that parties come to agreements based on information and understanding. They predominantly hold joint sessions with all parties present so that the parties can hear each other’s points of view. They however hold caucuses regularly. Practitioners want the parties to have the major influence on decisions made, rather than the parties’ attorneys.
The ADR practitioner also plays the roles of an advisor. By his/her professional skills he/she guides the parties in arriving at an amicable settlement. He provides opinion about the likely outcome of cases and advises on the best approach to resolving them. He/she also helps parties generate and articulate as many realistic options for settlement as possible. The practitioner helps the parties to make an assessment and assist the parties in finding the appropriate resources to make intelligent decisions. The practitioner may refer the parties to outside sources such as a valuer, planner, surveyor etc. he provides the disputants with feedback on the merits of their cases and in some instances bring fresh perspective to the case that are unknown to the parties.
In his evaluative role the practitioner models the process like settlement conferences held by judges. The practitioner assists the parties in reaching resolution by pointing out the weaknesses of their cases, and predicting what a judge or jury would likely do. The practitioner might make formal or informal recommendations to the parties as to the outcome of the issues. They are concerned with the legal rights of the parties rather than needs and interest, and evaluate based on legal concepts of fairness. They meet most often in separate meetings with the parties and their attorneys, practicing “shuttle diplomacy”. They help the parties and attorneys evaluate their legal position and the costs vs. the benefits of pursuing a legal resolution rather than settling in mediation. The evaluative mediator structures the process, and directly influences the outcome of the process.
There is an assumption that the practitioner has substantive expertise or legal expertise in the substantive area of the dispute. Due of the connection between evaluative ADR and the courts, and because of their comfort level with settlement conference, most evaluative practitioners are attorneys.
In the transformative the practitioner brings on board the values of “empowerment” of each of the parties as much as possible, and “recognition” by each party of the other party’s needs, interest, values and points of view. In Transformative role the practitioner meets with parties together, since only they can give each other “recognition”.
The parties determine the direction of their own process. They structure both the process and the outcome of the process, and the mediator follows their lead.
This role features especially under the process of arbitration, the ADR practitioner acts more as the decision maker. Although parties to the process can maintain some control over the design of the arbitration process, the ADR practitioner, being the Arbiter in this instance, decides on the outcome based on the evidence presented to him, interpreting the relevant rules and laws. In some situations, the scope of the rules for the arbitration process are set out by statute or by contract or by voluntary submission and the parties work together to design the process which is appropriate to their dispute.
Procedural rules are more relaxed at a hearing, contrasted with civil or criminal trials, though they are often more formal than arbitration. The know-how of an expert may be used to promote a quick resolution of a dispute.
In conclusion we wish to state that as effective and good as ADR process may be and for that matter what the ADR practitioner can do, it is worth mentioning that the ADR process has its own limitation in its reach and appeal. Not all cases are appropriate for ADR. Cases of constitutional nature, public policy and interest, human rights, or criminalities cannot be resolved by the ADR practitioner.
We wish to emphasize also that ADR mechanisms are very powerful devices which have direct effect on the lives of people, families, businesses, and the society as a whole. It is an ethical process with its own set of difficulties and complexities. The ADR practitioner must not only guard their neutrality, but also ensure that the practice of ADR is not abused or used to oppress.
Alternative Dispute Resolution (ADR) Act 2010 (Act798) of Ghana.
International chamber of commerce newsletters
SUPERVISED BY: ISAAC ASARE, PROGRAMMES COORDINATOR AND ADR PRACTITIONER.
EDITOR: H. W. RTD. JANET AWO BAKUDIE, A RTD. MAGISTRATE AND ADR PRACTITIONER