摘要：Derek Bok, former president of Harvard University, stated: "Over the next generation, I predict, society's greatest opportunities will lie in tapping human inclinations toward collaboration and compromise rather than stirring our proclivities for competition and rivalry.

 

Dispute Resolution Methods

Alternative Dispute Resolution

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   The conventional description of the term ‘ADR’ refers to the various forms of ad hoc procedure which are consensual and not subject to any coercive powers of the court, except perhaps in the enforcement of the resolution. These procedures are informal and are concerned with the amicable settlement of disputes between parties. This can be achieved through negotiation or arbitration.

 

 

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Introduction

   The use of the expression 'ADR', as short for alternative dispute resolution, is the starting point of a misconception of what ADR really is. Alternative to what, you may ask? And if you do, you will soon find that the alternatives raise an issue of client choice. Increasingly, a key feature of client choice is the degree of opportunity to affect or control the outcome of a dispute.

   A simplistic approach to the question is to ask whether you want an independent person to determine the answer, which means abrogating the right to direct involvement, or whether you want to preserve some control over the outcome.

Generally speaking, the choice of litigation involves the abrogation of the right to retain control. Litigation and arbitration can be further distinguished by issues concerning the proper law of the dispute, choice of venue and, within arbitration, the choice of arbitrator. Given the inflexibility of most litigation processes around the world, it is easy to understand why disputants should seek to opt out of litigation. But into what? Arbitration or ADR/Mediation? To take this further, what if the dispute is on an international scale?

   Arbitration offers parties the opportunity to affect and control the procedure that will determine the outcome and has long been a preferred means of dispute settlement internationally. It offers advantages that cannot be matched by litigation before local courts. It is possible to select decision makers who are specialised in international trade and commerce and equipped to deal with parties and counsel drawn from diverse legal and cultural backgrounds. Flexible procedures can be specially tailored to accommodate legal pluralism and to give priority to approaches that are practical and economic. In arbitration, parties are not constrained by local particularisms, especially rules of evidence and procedure. Arbitral independence is increasingly accepted as illustrated by the speech of Lord Steyn in the recent decision by the House of Lords in Lesotho Highlands Development Authority v Impneglio Spa & ors (2005).

   Arbitration proceedings are held in private. When the parties have ongoing commercial relations that might be damaged if their dispute were public or where commercially sensitive information is involved - for example, trade secrets - arbitration may assist to protect confidentiality.

   Finality of decisions and enforceability of arbitral awards across borders are, of course, also key attractions of arbitration, which is supported by a system of international treaties.

   Turning to ADR, the process which preserves the greatest degree of client control over outcome, the most common form is mediation. Like arbitration, it transcends international boundaries and offers potential for the quickest route to a solution to any given dispute.