According to Clarkson (2010) alternative dispute resolution shortened as ADR refers to techniques and processes that are employed by disagreeing parties to solve the disagreement before they initiate litigation. There are several types of ADRs. There are four types of ADRs. These are arbitration, collaborative law, mediation and negotiation (Clarkson, 2010). Conciliation is sometimes considered as a fifth type although in most cases it is classified as a part of mediation.
Arbitration is a technique of ADR where by an “impartial and independent third party decides how to resolve the dispute” (Clarkson, 2010). Normally the decision reached by the arbitrator is binding. The decision I most cases also remain secret unless the parties involved decide to make it public. One of the advantages of this technique is that someone impartial makes the decision which the parties respect without further recourse. The technique also offers secrecy and privacy and is considered in most instances to be cheaper and faster than other alternatives (Clarkson, 2010). One of the cons of this technique is that if a party feels that the process was not fair they may have no recourse. They would have to accept the decision (Clarkson, 2010). This technique therefore does not offer a chance to pursue litigation.
Collaborative law refers to technique whereby a trained negotiator who is an attorney is hired (Baum, 2010). The attorney guides the parties through the negotiation process until an agreement is made. According to Baum (2010) this technique is based on the reality that most civil cases do not reach courts. It is therefore on the negotiating table that a good decision can be made to which both parties can be satisfied. One of the advantages of this technique is that it is time and money saving (Baum, 2010). A disadvantage of this technique is that it can be time consuming as the negotiations go back and forth and a compromise may be hard to reach. The parties agree to settle the disagreement. However incase they do not reach a settlement and need to proceed to litigation then they have to get new lawyers. This adds up to cost and is time consuming. This technique allows for parties to progress to litigation if a solution is not reached.
The mediation technique whereby dialogue between the two disagreeing parties is guided by a mediator in order to reach an agreement while remaining focused and civil. Mediation is the most used technique in ADR. One of the advantages of this technique is that the parties themselves reach an agreement (Baum, 2010). The technique is also cheaper than litigation. In addition decisions reached can be reviewed by the parties and they sign upon satisfaction. Incase any party is dissatisfied with the mediation the process can be terminated (Baum, 2010). Mediation is additionally often more open and the parties can salvage their relationships as well as be cooperative in the solutions they are part of. Since the future is the primary concern in mediation solutions are geared towards what is helpful to the parties (Baum, 2010). In using this technique, incase all fails; the parties have recourse to litigation.
Negotiation as a technique refers to a discussion involving the disagreeing parties whereby the parties aim to reach a solution. The procedure can be among groups or people. Negotiations can also be between companies at corporate level or internationally between countries (Lewicki et al, 1999). Negotiations in this case are used to bring parties together for mutual benefit that may not be reached by either alone or to solve a problem. One of the advantages of negotiation is that it allows the parties to negotiate for however much they can get instead of merely accepting what the other party offers. Negotiations also allow the parties to save time, built better relationships for the future and reach mutually satisfying agreements (Lewicki et al, 1999).
However, some disadvantage is that they can be time consuming. One of the parties that may be in a stronger position may attempt the force or bully the opposite entities to submit to their demands (Lewicki et al, 1999). In the interest of peace the other party may be forced to accept the terms although they may be unfair. This would lead to future problems as the problem was not solved well. However this technique allows the parties to progress to litigation incase the disagreement is not settled.
ADR are constantly used by those people who are trying to avoid litigation. One of the recent cases in which the parties used an ADR technique is in the disagreement between Microsoft and Novell. Problems between the two companies were bought to attention in 2004. The problem was based on antitrust claims against Microsoft by Novell. However the companies reached an agreement through a private mediation process. The agreement covered all “Novell’s NetWare product and all of the other products and businesses which it owned” (ECIS, 2010). According to ECIS (2010) Microsoft paid 536 millions to Novell in 2004. Rooney (2004) states that Microsoft has been paying many other companies that filed antitrust claims against it.
According to Rooney (2004) one of the benefits of settling with Novell especially through mediation was that it put Novell out of future litigations that might stem from the European commission. This was part of the agreement. For Microsoft it would be cheaper to get out paying higher settlements to Novell and weaken the claims that may be made by the European Union. In addition settling through mediation allowed for more dialogue between the two companies. As a result there was opened a door for the companies to reach mutually beneficial agreement. Since the mediations Microsoft and Novell have looked for ways that the two companies could work together as the leaders of technology in two different markets. In 2006, Novell and Microsoft made agreements to work together (IDC, 2006).
References
Baum, R. L. (2010). Collaborative law: Your ticket out of court. Retrieved on 13th November,
2010, from http://marylandmediator.com/adr.html
Clarkson, R. (2010). Arbitration Law: Everything you need to know-Part 1. Retrieved on 13th
November, 2010, from http://blogs.findlaw.com/solicitor/2010/05/arbitration-law-everything-you-need-to-know—part-1.html
ECIS. (2010). A history of antitrust problems: Microsoft settlements to resolve antitrust disputes
2003-2007. Retrieved on 13th November, 2010, from http://www.ecis.eu/issues/documents/List_of_Microsoft_Settlements_total.DOC
IDC. (2006). Microsoft and Novell reach sweeping agreement on windows SUSE Linux
enterprise coexistence. Retrieved on 13th November, 2010, from www.novell.com/linux/microsoft/204252.pdf
Lewicki, R. J., Saunders, D. M., and Minton, J. W. (1999). Negotiation. (3rd). San
Francisco, CA: Irwin McGraw-Hill.
Rooney, P. (2004). Microsoft antitrust settlements may top $4.5B. Retrieved on 13th November,
2010, from http://www.crn.com/news/applications-os/52500275/microsofts-antitrust-settlements-may-top-4-5b.htm;jsessionid=f6bHMfmR3eR2iR-HpI60vw**.ecappj01
