Including alternative dispute resolution clauses in legislation
This is a single section from Chapter 26. Read the full chapter here.
Which form of ADR should be used?
The form of ADR adopted should help to achieve the policy objective and be appropriate having regard to the nature of the dispute and the issues in question.
A range of forms of ADR will be appropriate, depending upon the different types of issues. The ADR processes most likely to be suitable for inclusion in legislation can be divided into three broad categories:
- Facilitative processes (facilitation, negotiation, mediation): Involve an impartial third person with no advisory or determinative role who provides assistance in managing the process of dispute resolution.
- Evaluative processes (conciliation, expert evaluation, case appraisal): Involve an impartial third person who investigates the dispute, advises on the facts and possible outcomes, and assists in its resolution.
- Determinative processes (adjudication, arbitration, expert determination): Involve an impartial third person who investigates the dispute and makes a determination that is legally enforceable.
Some key issues to consider, when deciding which process is appropriate for a particular scheme, are noted below.
- The role of the third party: Will the third party predominantly help the parties to reach mutual agreement, will they investigate the dispute and advise on potential compromises and outcomes, or will they make a legally enforceable determination?
- Control over participation and process: How flexible or formal should the process be? How much of the process should the parties determine? What are the consequences (if any) of refusing to engage in, or withdrawing from, the process once commenced?
- Nature of the outcome: Will the outcome be confidential and binding on the parties? Will the outcome be appealable to a court under certain circumstances?
- Administration: Who will administer the service? Will the Government provide the ADR service? Will the service be free to all parties? How will the third person and location be determined?
Further detailed discussion on selecting the appropriate form of ADR can be found on pages 400 to 410 of the 2001 edition of the Guidelines.