Unconventional ADR Options in the Modern Era (Part II)

By Dr. Gary Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University

Note: This article is the second in a two-part series on unconventional alternative dispute resolution (ADR) options.

In the first article, we discussed some of the less common alternative dispute resolution options, including non-binding evaluation, mixed or hybrid approaches, and multimodal strategies. In this part, we’ll look at the pros and cons of these different approaches. We’ll assess how they compare with one another and how they stack up against more traditional forms of ADR, such as arbitration and mediation.

As previously discussed, non-binding evaluation may be a valuable alternative to some of the more mainstream ADR options. However, it has its own set of advantages and disadvantages relative to the other choices.

Advantages and Disadvantages of Non-Binding Evalution in ADR

Advantages of non-binding evaluation include:

• Non-binding by Nature – Arguably the biggest advantage of non-binding evaluation is the fact that it is not binding on the parties. This gives them some relief and flexibility to explore the conflict honestly without fear that they will be locked into an outcome.
• Expediency – Non-binding evaluation focuses on an optimally efficient review of the merits of the arguments at issue. It pays little regard to the emotional considerations of the relationships between the parties; as such, it is typically a quicker process than mediation or other alternatives.
• Choice of Neutral – As with mediation and arbitration, the disputants’ freedom to choose the neutral party facilitating the evaluation is a significant advantage over litigation.

Disadvantages of non-binding evaluation include:

• Emotional Disregard – In the same way that the lack of emotional consideration of non-binding evaluation can be an advantage in that it arrives at an outcome more quickly than mediation, it can also produce an environment that is less amicable and cooperative between disputants.
• Efficiency Not Guaranteed – As efficient as non-binding evaluation can be, the fact that opinions rendered are not binding on the disputants without mutual consent means the proceedings may still lead to either binding ADR (e.g. arbitration) or litigation. Consequently, if the parties cannot agree, the process may actually delay the final resolution.

Pros and Cons of Hybrid ADR Tools

In the previous article, we also discussed a variety of mixed and hybrid ADR tools that have evolved in dispute resolution from a variety of unique needs. Among them are med-arb, arb-med, mediation windowing, incentive arbitration, minitrials, ombuds, dispute resolution systems and online dispute resolution. The following is a cursory review of the strengths and weaknesses of each of these methods:

• Med-Arb – Mediation-arbitration is arguably an attractive option for disputants because of the incentivization to negotiate created by the threat of arbitration. However, some argue that when mediators subsequently serve as arbitrators there are ethical issues of confidentiality and impartiality that may be compromised.
• Arbitration-Mediation – Arb-med has the advantage of giving disputants a sense of the likely outcome of arbitration before negotiations begin, which provides an informed perspective for discussions. However, the adversarial nature of arbitration often results in escalated hostility between the parties, which makes subsequent negotiations more difficult.
• Mediation Windowing – This strategy has the benefit of giving disputants opportunities at intervals throughout the process to seize control of their dispute resolution efforts. However, if tensions are escalating, this effort isn’t likely to be of any practical value either.
• Incentive Arbitration – Incentive arbitration is an attractive compromise between binding decisions and the maintenance of perceptions of control that is often necessary for successful compromise. However, if relations between the disputants have soured, it is unlikely that the “incentive” offered to accept an otherwise ill-favored decision will have any effect.
• Minitrial – Minitrials are a great way to provide disputants with a realistic projection of what an actual trial outcome would look like, especially if there are significant questions as to the legal merits of the arguments. However, as with some of the other options already discussed, minitrials can be as adversarial as formal trials. As such, they do very little to promote reconciliation between the parties.
• Ombuds – Ombuds provide a great resource for disputants to resolve issues within an organization’s scope of influence. However, as discussed in the first half, actual and perceived neutrality are both essential elements of ombuds’ success. It can often be difficult to convince all parties of the ombuds’ neutrality in resolving disputes.
• Dispute Resolution Systems – Dispute resolution systems are fine to the extent that they provide an organized and methodical plan for dispute resolution efforts. However, when these plans are too rigid to conform to the various needs of different kinds of disputes, they can sometimes do more harm than good.
• Online Alternative Dispute Resolution – Online alternative dispute resolution can be an efficient and extremely flexible venue for ADR, especially when factors such as accessibility to the court system are important. However, sometimes the lack of face-to-face contact and communication can undermine efforts at reconciliation, particularly with efforts that seek to resolve personal as well as legal matters.

As you can see, there is a large assortment of unconventional ADR options today from which to choose; none of them are perfect tools. However, the fate of a dispute resolution plan often hinges on matching an optimal approach to the unique circumstances of a given situation. So in this context, unconventional ADR strategies simply allow for more customization of potential dispute solutions and maximization of the chances of success.

About the Author

Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.