As the alternative dispute resolution—or ADR—world grows and becomes more prevalent, many business lawyers, and even some litigators, may find the difference amongst the various ADR processes somewhat unclear. Selectors may also confuse the role a neutral plays in each and waver in determining the best person to choose for their case. I describe below the traditional ADR mechanisms, namely arbitration and mediation, and the attributes of an effective arbitrator and mediator. I then cover Med-Arb, a lesser-known mechanism, and discuss dispute avoidance measures, which are gradually gaining traction.
Arbitration
Arbitration is often viewed as a more efficient and less costly alternative to litigation. It is a dispute resolution process that is generally supported and enforced by the traditional courts. Basically, it involves the parties selecting their adjudicator and agreeing to the procedural rules they will follow. The concept of party autonomy is at the heart of the arbitration process. For disputes involving highly technical matters, selecting the decision maker based on their qualification as opposed to a court-imposed judge can be particularly appealing. For smaller disputes and parties seeking a swift process, the ability to bypass extensive discovery and cumbersome processes is another major advantage. For international transactions, arbitration allows parties to avoid having to submit to the courts of a foreign nation that may have national biases. More generally, arbitration centers and arbitrators have shown themselves to be much more easily adaptable to change than courts: The shift to remote in arbitration hearings was rather swift while courts have moved relatively slowly, if at all, creating a significant backlog.
