Main Types of ADR
Arbitration is a flexible, consensual process for resolving business disputes in a binding and enforceable manner.
The decision makers are called arbitrators, or collectively the arbitral tribunal. The arbitral tribunal comprises one or more independent individuals selected by the parties or appointed through a mechanism that the parties have agreed upon. An arbitral tribunal’s substantive decision is called an award.
Arbitration is the only alternative to court litigation for achieving a final, binding and enforceable resolution of a dispute.
In Ireland the Arbitration Act 2010 (which you can access by clicking here) came into effect on 8 June 2010. It provides a structural legal framework for both domestic and international arbitrations.
For more Information, click on the following links:
The ICC International Court of Arbitration
Sample Arbitration Clause
Mediation is a flexible settlement technique, conducted privately and confidentially, in which a mediator acts as a neutral facilitator to help the parties try to arrive at a negotiated settlement of their dispute.
The parties have control over both the decision to settle and the terms of any settlement agreement. In mediation proceedings, parties remain in control of the outcome by negotiating a contractually binding, win-win agreement based on their business interests. Since control over the decision to settle and the terms of any settlement agreement remains with the parties, the mediator has no power to impose a settlement on the parties but facilitates the parties’ settlement negotiations
A significant benefit offered by mediation in consumer and commercial disputes is cost-effective access to justice. Many consumer and commercial complaints are likely to be for relatively small sums of money and thus parties may not wish to spend large amounts in an attempt to resolve them. It is for precisely this reason that mediation can be so beneficial to business, particularly SMEs who often don’t have the same resources for legal expenses as larger corporations.
In 2011, the Minister for Justice gave effect to the 2008 EC Mediation Directive to form the EC (Mediation) Regulations 2011 (which you can access by clicking here) which outlines the way mediation can be used in cross border disputes for commercial and civil cases. The government has also committed to publishing a Mediation Bill, based on recommendation made in a Law Reform Commission report, which will introduce legal structure to the use of mediation in Ireland. For more information, please see the Draft General Scheme of Mediation Bill 2012 by clicking here.
For more information, click on the following links:
International Centre for ADR
ICC Mediation Rules
Sample Mediation Clause
Law Reform Commission Report on ADR (2010)
Conciliation is a process whereby parties request a third person or persons (―the conciliator) to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship. The conciliator does not have the authority to impose upon the parties a solution to the dispute.
The difference between conciliation and mediation lies in that the conciliator may offer an opinion and alternatives with respect to proposals advanced by any one party to the other. The process itself does not vary when compared to the mediation process.