Monday, 1 July 2013

[ADR] Facilitative, Advisory and Determinative Alternative Dispute Resolution Processes

NADRAC (National Dispute Resolution Advisory Council) classifies ADR (alternative dispute resolution) into three types depending on the role of the third party. They are the facilitative, the advisory and determinative processes. The facilitative approach involves a third neutral party assisting the parties as to the management of the procedure. Unlike the other two types, it does not have an advisory or determinative role. Processes such as mediation, conciliation and facilitation come under this classification. Secondly, the advisory type involves a third neutral party assisting the parties with the process of the dispute resolution but also advises the parties on the facts of the dispute and may make advice, in some cases, in regards to possible, probable and desirable outcomes to the dispute. This is not, however, a binding determination but merely advisory. Here, case appraisal, investigation, expert appraisal, case presentation and dispute counseling comes under. Thirdly, the determinative process involves a third neutral party that has a more proactive role compared to the former two types. The third neutral is involved with evaluating the facts and determining the outcomes of the dispute. This process may include arbitration, expert determination, fact finding and adjudication.

There are notable advantages of the first type of ADR processes- facilitative. There are also arguments against the use of facilitative ADR but it depends on the nature of the parties’ dispute. Firstly, many scholars argue that facilitative processes allow for greater flexibility and greater possibility for creative solutions than does a purely evaluative process. This is because the facilitative process, by virtue of not having an evaluative and advisory role, is interest-based approach compared to rights-based approach. As a consequence, the process can take into account of the whole dispute including the emotional responses and wider implications of the dispute rather than merely focusing on the legal issues. However, proponents of the evaluative approach may argue that this does not serve the principle of justice and fairness as it does not purely address the legal issues. But again, the main objective of most dispute resolutions is to satisfy the clients and this, the parties’ satisfaction, is essential the main measure of the effectiveness of a dispute resolution. 

Another advantage of the facilitative ADR is that the evaluative, rights-based processes can lead to greater positional bargaining. This is because once evaluation is given, a party whom is unfavored may perceive a partial bias in the evaluation. Moreover, this evaluative role undermines the cornerstone of the ADR processes- the protection of self-determination. An evaluative role may undermine this by actively engaging in determination of the outcome.

1 comment:

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