THE THIRD PART Y

INTERVENTION-
L I T I G AT I O N / C O N C I L I AT I O N /
A R B I T R AT I O N

HELEN PENG
CONTENT

• Resolution Alternative to Courts • Dispute resolution mechanism consists of:

• Advantage of ADR 1. Resolution through Courts (Litigation)
• Five Ways to Keep Disputes Out of 2. Resolution alternative to Courts
Court a) Negotiation
• The ADR Mindset b) Conciliation
c) Arbitration
ADVANTAGE OF ADR
• Alternative Dispute Resolution (ADR)
• Court proceedings do not offer a satisfactory method for settlement of commercial disputes
as it involves inevitable delays, costs and technicalities. On the other hand, ADR provides an
economic, expeditious, and informal remedy for settlement of commercial disputes.
• Arbitration and conciliation are increasing being use as an alternative to seeking lengthy
recourse before the courts to settle disputes by commercial establishments world over.
• In the US, for instance, over 85% of cases of disputes are settled through arbitration and
conciliation course.
• Negotiation: As already seen, Negotiation is a compromise. Compromise is the art of dividing
a cake so that everybody believes he or she got the biggest piece.
FIVE WAYS TO KEEP DISPUTES OUT OF
COURT
• EVEN IF YOU WIN, A lawsuit can be a disaster. All forms of ADR are designed to do two
things; save time and money and soften the sharp edges of the adversarial system.
• In picking the ADR method best suited to your circumstances, factors to consider incude: the
extent to which both disputants are committed to ADR, the need for privacy, the urgency of
reaching a settlement, the absolute and relative financial health of both parties, the importance
of the principles involved, the complexity of the case, the size of the stakes, and the ability and
willingness of company executives to get involved.
• Alternatives to traditional litigation have been around for many years, but Alternative Dispute
Resolution (ADR) as a formal technique and an accepted business practice emerged in the
1970s.
THE ADR MINDSET- THE CREATION OF TRUST IS
CENTRAL TO THE DESIGN OF MANY ADR TECHNIQUES.
• To most people, ADR means any method of resolving disputes other than litigation, which is
correct only if litigation includes not only cases that actually go to trial but also lawsuits that
are settled before they get to court.
1. More than 90% of all lawsuits are settled out of court, most of them virtually on the
courthouse steps after months or years of preparation and expense.
2. The very initiation of a saw suit, even if it is settled period to trail, gives rise to the
adversarial mind-set, which then makes its own prodigious contribution to cost, delay and
acrimony.
**As we will see, some ADR mechanisms work better than others in any given case. Sharing two
characteristics:
1. They are all attempts to save legal and managerial time and money
2. They all try to take at least some of the edge off the adversarial attitude.
**The theory behind ADR is that settling disputes as painlessly as possible requires good
communication, that good communication requires some degree of trust, and that the adversary
system of dispute resolution nurtures distrust, distortion, and animosity.
THE ADR MINDSET
• Five Forms of ADR
1. Arbitration: the decision to seek arbitration is sometimes made after a conflict has arisen
2. Mediation: mediation differs from arbitration in that the neutral third party, the mediator,
does not impose a solution…depending on the personalities and wishes of the parties and
their attorney, the nature and history of the dispute, and the personality and skills of the
mediator
3. The rent-a-judge program: this uses normal trail court procedures..sometimes modified by
the disputants
4. Summary jury trial: is based on the observation that litigants are often unable to settle their
disputes quickly….
5. Minitrial, although techniques can be combined to from hybrids suited to a particular dispute
or legal jurisdiction
THE ADR MINDSET
• Factors should take into account:
• Manage Expectations:
1. Commitment
1. Check your conscience at the door:
2. Relationship
As a mediator, you must be a fierce defender
3. Privacy of the process and of things impartial
4. Urgency Mediators must keep a poker face and move
5. Finances on to the next item.
6. Principle 1. Create the atmosphere for an
agreement this is the mediator’s job
7. Complexity
2. Inevitability: In the case of litigation, the
8. Stakes
more time that passes, the more it costs
9. Executive involvement the parties in legal fees, an incentive all
its own.