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The phrase "Alternative Dispute Resolution" is
generally used to refer to the process of solving disputes through means other
than traditional litigation in the courts. Most commonly included under the
umbrella of ADR are, in order of increasing third party intervention,
Negotiation, Facilitation, Mediation, and Arbitration. Each of these is
described below.
Negotiation is the process by which 2 or more parties reach a mutually
agreeable resolution of an issue through direct communication and discussion.
The negotiation may be conducted by the parties themselves, or through
representatives who are themselves often skilled communicators. Successful
principled negotiations usually involve far more than simply reciting a list of
demands, and need not be highly confrontational.
Facilitation - This term can describe a number of roles a trained ADR
professional can play, but one example is found in the report of the Company 2
Company Dispute Resolution Task Force for the Canadian Petroleum Industry,
released in April, 2004: "a coordinated, informal problem-solving process
involving a third party. The role of a facilitator is to encourage participation
in this process by relevant parties, assist in their dialogue, and help the
parties reach their own solutions."
Mediation again involves the parties to a dispute reaching a mutually
agreeable settlement, but this time through the assistance of a neutral third
party intermediary. This mediator does not impose a solution upon the parties,
but instead facilitates the process by skilfully assisting them to explore and
gain understanding of the real underlying interests of the other, which may have
led them to hold differing positions on the issue at hand. The goal often is
"win-win".
Arbitration is the deciding of a dispute through the
binding decision of one to three neutral persons called arbitrators, who have
been chosen by the parties to the dispute. An arbitrator performs a role similar
to that of a judge, and in complicated matters an arbitration hearing can have
to some extent some of the same formalities as might be found in a court room.
Frequently, however, more straight forward disputes can be arbitrated in a
simpler, less encumbered fashion. Once parties have agreed to submit their
dispute to arbitration, further recourse to the courts is highly circumscribed,
and the decision of the arbitrator is generally regarded as final. Arbitrations
in Alberta are governed by the Arbitration
Act
or the International
Commercial Arbitration Act, and by any agreements between the parties.
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