Basic Overview of ADR

Workplace Dispute Resolution Section

February 2, 1999 
AGENDA

9:00 - 9:10 Introduction and Overview of Session

 Martha McClellan, FDIC

9:10 - 10:30 Introduction to ADR

 Dorethea Taylor-Kennedy, NIH-ORS

 Charlotte Kaplow, FDIC

10:30 - 10:40 Break

10:40 - 11:50 Choosing And Using an ADR Method

 Panel Members:

 Dorthea Taylor-Kennedy, NIH-ORS

 Delores Crawford, GAO

 Sheila Wolcott/Linda Washington, BEP

11:50 - 12:00 Wrap-Up 
BASIC OVERVIEW OF ADR

COURSE OUTLINE

I. Definition of ADR

A. What ADR is

B. What ADR is not

C. Two basic kinds of ADR

D. Advantages of ADR

E. Primary Dispute Resolution Process -- 

 Adjudication 
BASIC OVERVIEW OF ADR

COURSE OUTLINE

II. ADR Models

A. Three Primary ADR Processes

 1. Negotiation

 2. Mediation

 3. Arbitration

B. Eight hybrid processes

C. Spectrum of ADR procedures
BASIC OVERVIEW OF ADR

COURSE OUTLINE (Continued)

III. Choosing an ADR Method

A. Is ADR Appropriate?

 1. General presumption that it is

 2. Circumstances when it may not be

B. If ADR is Appropriate, How Do You Choose an ADR 

 Method?

 1. Issues to consider

 2. Using the spectrum approach

 3. What type of ADR is appropriate?

 4. Client objectives -- overcoming impediments
What is ADR ?

 All forms of dispute resolution other than court 

adjudication

 “Appropriate Dispute Resolution”
What ADR is NOT . . .

 Appropriate for every dispute

 The solution to all disputes or conflicts
Two kinds of ADR

 Interest-based

 Rights-based
Advantages of ADR

 Reduces cost of dispute resolution

 Reduces length of time for dispute resolution
Advantages of ADR (continued)

 Reduces court congestion; may reduce court 

filings and dockets

 Increases involvement of participants

 Increases level of compliance
Disadvantages to Primary Dispute 

Resolution Process (Adjudication)

 Imposed by third-party decision maker

 Involuntary 

 

 Binding 

 

 
Disadvantages to Primary Dispute

Resolution Process (Adjudication)

 Formalized and structured

 Public (no confidentiality)
Three Primary Alternative Dispute 

Resolution Processes

 Negotiation 

 Mediation

 Arbitration 
Negotiation Characteristics

 Voluntary, private

 If agreement, enforceable as a contact

 No third-party facilitator

 Informal 

 No limits on presentation of arguments

 Seeks mutually acceptable agreement
Mediation Characteristics

 Voluntary 

 If agreement, enforceable as a contract

 Party-selected neutral

 Unbounded presentation of evidence

 Seeks mutually acceptable agreement

 Private

 Narrow issues for trial
Two types of mediation

 Rights-based mediation 

(Outcome prediction)

 Interests-based mediation

(Facilitated negotiation)
Arbitration Characteristics

 Voluntary 

 If binding, only subject to limited review

 Party-selected third-party decisionmaker

 Less formal, procedurally

 Present proofs and arguments

 Sometimes principled decision

 Private
Three Types of Arbitration

1. Voluntary, Binding

2. Voluntary, Non-binding 

3. Compulsory, Non-binding 
Eight Hybrid ADR Models

 Mediation-Arbitration 

 Private Judging

 Neutral Expert Fact-Finding 

 Early Neutral Evaluation

 Mini-trial

 Summary Jury Trial

 Ombudsman 

 Negotiated Rule-making 
ADR SPECTRUM

Negotiated ADR

Facilitated 

ADR 

Fact-Finding 

ADR 

Advisory ADR

Preventive ADR Imposed ADR
ADR Spectrum

 Preventive ADR

 Negotiated ADR

 Facilitated ADR

 Fact-Finding ADR

 Advisory ADR

 Imposed ADR
Six Types of ADR

PREVEVTIVE NEGOTIATED FACILITATED 

 Partnering Principled Conciliation

 ADR Clauses Positional Mediation

 Negotiated Problem Solving

 Rule-Making 

 Joint Problem 

 Solving
Six Types of ADR (Continued)

FACT FINDING ADVISORY BINDING 

 Neutral Neutral Binding 

 Expert Fact Evaluation Arbitration 

 Finding Private Judging 

 Masters, Summary Jury

 Magistrates Trials

 Mini-Trials

 Non-Binding Arbitration
ADR May Not Be Appropriate

When There Is . . . 

 A need for precedent

 A significant issue of Government policy

 A need to establish uniform policy

 An absent third party who may be adversely 

affected 
ADR May Not Be Appropriate

When There Is . . . (continued)

 A need for a full public record

 A need for continuing jurisdiction

 Another disputant who is not committed to the 

good faith use of ADR

 Tax, judicial foreclosure, or insurance defense 

issues 
Principle of Subsidiarity

 Resolve the matter at the lowest possible level of 

organization 

 Start with the most interest-based procedure 

possible 
Designing Your Own Hybrid

 Tailor the process to the problem

 Use a tiered approach

 Bifurcate the issues/use different methods

 Identify an enforcement method for follow-up