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Topic Brief on Alternative Dispute Resolution (ADR)

 

Alternative dispute resolution encompasses a range of means to resolve conflicts short of formal litigation. The modern ADR movement originated in the United States in the 1970s, spurred by a desire to avoid the cost, delay, and adversarial nature of litigation. For these and other reasons, court reformers are seeking to foster its use in developing nations. The interest in ADR in some countries also stems from a desire to revive and reform traditional mediation mechanisms.

ADR today falls into two broad categories: court-annexed options and community-based dispute resolution mechanisms. Court-annexed ADR includes mediation/conciliation—the classic method where a neutral third party assists disputants in reaching a mutually acceptable solution—as well as variations of early neutral evaluation, a summary jury trial, a mini-trial, and other techniques. Supporters argue that such methods decrease the cost and time of litigation, improving access to justice and reducing court backlog, while at the same time preserving important social relationships for disputants.

Community-based ADR is often designed to be independent of a formal court system that may be biased, expensive, distant, or otherwise inaccessible to a population. New initiatives sometimes build on traditional models of popular justice that relied on elders, religious leaders, or other community figures to help resolve conflict. India embraced lok adalat village-level people’s courts in the 1980s, where trained mediators sought to resolve common problems that in an earlier period may have gone to the panchayat, a council of village or caste elders. Elsewhere in the region, bilateral donors have recently supported village-based shalish mediation in Bangladesh and nationally established mediation boards in Sri Lanka. In Latin America, there has been a revival of interest in the juece de paz, a legal officer with the power to conciliate or mediate small claims.

Some definitions of ADR also include commercial arbitration: private adversarial proceedings in which a neutral third party issues a binding decision. Private arbitration services and centers have an established role in the United States for commercial dispute resolution, and are spreading internationally as business, and the demand for harmonization, expands. In the last decade, more countries have passed legislation based on the 1985 UNCITRAL Model Law on International Commercial Arbitration, which makes an arbitral award legally binding and grants broad rights to commercial parties choosing arbitration. Yet critics argue that arbitration, once considered an alternative to litigation, is now afflicted by the same problems of cost, delay, complexity, and dependence on legal representation (Brooker 1999, Mitchard 1999).

In the last two decades, ADR initiatives have mushroomed in developing and developed countries alike. But despite their popularity, many questions remain regarding their actual success in increasing efficiency and in providing broader access to justice. The absence of empirical studies from developing countries on the results of ADR makes such questions even more difficult to address. Recent research on ADR in the United States suggests that participants are generally pleased with the conciliatory, comprehensible, and flexible procedures of ADR, but that efficiency gains may be minimal. The extensive RAND Institute for Civil Justice study on U.S. courts found that the aggregate costs for the courts, and average time to disposition of cases, had not declined (ADR Workshop 1999).

In addition to the impact of ADR on efficiency, a second challenge concerns the consequences of ADR on access to justice. In the U.S. courts, many women’s advocates have long opposed mediation in family law cases where domestic violence is a factor. In a similar vein, critics argue that the restoration of traditional dispute resolution mechanisms, as for example in India, subjects women to the application of discriminatory social norms rather than the relatively fair justice of a rights-based legal system (Whitson 1992).

Questions also remain about the effectiveness of ADR where the parties have no incentive to resolve their dispute. Unlike a judge, a mediator or arbitrator has no power to order a party to appear and defend a claim. Nor can a mediator or arbitrator compel the losing side to comply with a decision (Landes and Posner 1979). Sometimes the desire to remain on good terms with the other party or to preserve one’s reputation provides the incentive to submit to an ADR process and abide by its outcome. ADR is thus common in the construction trade, where contractors and subcontractors do business with one another over many years, and where they therefore need to maintain good relations. Community pressure is sometimes behind the willingness of disputants to participate in traditional mediation. Where the parties agree by contract to use ADR to resolve their disputes, the courts can sometimes be enlisted to require a party to honor its agreement to use ADR.

When ADR schemes supply no incentive for parties to accept the arrangement, their effectiveness flags. In the United States, some courts have required parties to try ADR before they are allowed to litigate. But many researchers have found that mandatory mediation does not capture the benefits of voluntary programs (Bernstein 1993). One theory holds that potential litigants who may well know they are in the wrong have no interest in a speedy resolution of the dispute. In such cases, requiring the parties to go through an ADR proceeding may simply increase the time and expense required to resolve the claim.

In contrast to the early unfettered enthusiasm for ADR, newer recommendations for ADR are typically more cautious. Even its proponents note that ADR may not be preferable where there is a need for a public vindication, an interpretation of law, a precedent set to reform general practice, or where civil or constitutional rights issues are involved (Mitchard 1999).

As ADR mechanisms become less voluntary and more formalized -- for instance, through laws that give alternative courts the authority to subpoena witnesses or enforce orders -- they may lose the original benefits of cost and simplicity. Some critics argue that arbitration has already lost all the advantages of an "alternative" practice, and is now as complex and dependent on legal expertise as litigation (Brooker 1999). With such limitations, governments, donors, and civil society groups will continue to ask whether the marginal dollar should be allocated to ADR or to competing judicial reform strategies.

For Further Reference

Alternative Dispute Resolution Workshop, The World Bank, January 6, 2000

Features results of ADR evaluation conducted in developing countries and in the United States by the Conflict Management Group, Stanford Law Professor Deborah Hensler, and D.C. Superior Court Judge Nan Shuker.

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Bernstein, Lisa "Understanding the Limits of Court-Connected ADR: A Critique of Federal Court-Annexed Arbitration Programs," University of Pennsylvania Law Review 141(6):2169-2254 (1993)

Brooker, Penny. "The ‘Juridification’ of Alternative Dispute Resolution." Anglo-American Law Review 28:(1)1-36 (1999)

Institute for Civil Justice - RAND’s studies of the U.S. Civil Justice Reform Act have found no significant effect in cost or time-to-disposition with the introduction of ADR.

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Landes, William M. and Richard A. Posner. "Adjudication as a Private Good." Journal of Legal Studies 8:235-284 (1979)

Mitchard, Paul. "A Summary of Dispute Resolution Options." Martindale-Hubbell International Arbitration and Dispute Resolution Directory (Exeter: Matindale-Hubbell International, 1999) 3-24.

Whitson, Sarah Leah. " ‘Neither Fish, nor Flesh, nor Good Red Herring’ Lok Adalats: an Experiment in Informal Dispute Resolution in India." Hastings International and Comparative Law Review 15:391-445 (1991-1992)

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