I. Benefits of ADR

• Helps clarify the problem and the underlying issues and interests
• Helps build respect for and a better understanding of different viewpoints
• Encourages greater creativity and a broader range of options for mutual exploration
• Leads to better informed, more creative, balanced and enduring decisions
• Increases commitment by sharing responsibility for the process and outcomes
• Improves chances of implementing a permanent solution
• Improves the working relationships between all parties in the process
• Enhances democratic decision-making by involving citizens and by keeping public values at the forefront
• Enhances citizen capability to promote more fundamental and meaningful citizen participation
• Empowers the community/individuals
• Acknowledges community knowledge

II. ADR Theory

In theory, ADR participants move beyond adversarial to collaborative decision making. Working with the neutral, participants sit down together to reformulate their issue in a way that sidesteps the conflict. Parties play an equal role in designing and implementing its ADR mechanisms. They try to bridge their differences, to find common ground, and to identify creative new solutions to their conflict. As an interest-based negotiation strategy, the ADR model requires disputants to surrender their "positions" and to move to "interests" as the basis for negotiations. The idea is that interests (e.g. the value of protecting human health and the environment) underlie positions (e.g. the opposition to burning hazardous wastes), and that interests, unlike positions, are unassailable. In order for the ADR process to work, the parties must be willing to negotiate, to work together to reach agreement. If a party's position is no, and there's no chance of negotiation, then ADR is inappropriate.

• The Key Elements of Interest-based Negotiation Strategy
• (Excerpt from Fisher and Ury, Getting to Yes)
  • Separate the people from the problem.
  • Focus on interests not positions.
  • Invent options for mutual gain.
  • Insist on objective criteria.
  • Know your best alternative to a negotiated agreement.

II. The Spectrum of ADR Processes

ADR comprises a range of processes used to foster dialogue, clarify areas of agreement and disagreement, and to resolve disputes. Generally, ADR involves the assistance of an impartial neutral skilled in problem-solving. Some of the processes, such as mediation, are more informal and are designed to help the parties develop their own solutions. Other more formal processes, such as arbitration, may give an outside third party authority to impose binding solutions on the disputing parties. This section includes information useful to exploring the ADR field.

• Common Features of Collaborative Approaches
  • Participation is inclusive and voluntary
  • Participants have ownership of the process
  • People are kept informed
  • A common definition of the problem is used
  • Participants help educate each other
  • Multiple options are developed
  • Decisions are made by agreement
  • Participants oversee implementation
  • The process supplements existing legal procedures
    
• Most Useful ADR Processes
  
  While ADR mechanisms span multiple problem-solving strategies, the three most useful include (1) the ombuds , (2) mediation , and (3) arbitration . The ombuds and mediation fall on the "soft" side of the spectrum in which parties get assistance . Arbitration lies at the other end of the scale. Here parties have someone decide for them . Of the three mechanisms, the State of Ohio currently offers only mediation services for environmental disputes. The main focus of this section will thus lean toward mediation. Nonetheless, we will discuss both arbitration and the ombuds, since these mechanisms are employed increasingly nationwide.

The Ombuds

An ombudsperson is an impartial and independent party appointed to receive complaints and provide information and confidential assistance to help achieve resolution of conflicts. She/he is an information resource, offering guidance when an individual does not know where to begin or offers help when regular channels have failed. The Ombudsperson acts as a liaison between the client and agencies or companies. She/he communicates grievances, requests, suggestions, concerns, or issues which cannot or would not be handled appropriately through normal reporting channels, or which have been submitted through such channels but have not received a satisfactory response.

Mediation is frequently used as a first resort in the event of a dispute. The goal of mediation is problem solving and preserving working relationships. The mediator helps the parties reach their own solution, assisting in the process so that the disputants can come together and reach a settlement The stage at which mediation can be used in a case varies, but can be employed at any point in the dispute. The process involves a series of joint meetings to establish ground rules, gather information, and set priorities. Once a settlement is reached, the parties and the mediator prepare and sign a written settlement agreement.

Arbitration

Reference of a dispute to an impartial person or persons, called arbitrators, for a decision or award based on evidence and arguments presented by the disputants. The parties involved usually agree to resort to arbitration in lieu of court proceedings to resolve an existing dispute or any grievance that may arise between them. In arbitration, the arbitrator is a decision-maker who issues a ruling. Parties are usually represented by counsel, who each argue their case before a single arbitrator or a panel of three and the arbitrator makes a decision based on the evidence. Participants in an arbitration yield the control of the outcome to the arbitrator. It is rare to successfully appeal an arbitrator's decision. The parties can generally control the ground rules of the proceedings. It is usually less formal and more flexible than trial. There is less pre-hearing discovery--the rules of evidence are more relaxed; parties can select the neutral; the process is private and confidential.

III. Evaluating Cases for ADR

http://www.cpradr.org/suitscrn2.htm

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Assess ADR Suitability

• When to Use Mediation
  • Aside from the dispute, the parties have had an ongoing professional or personal relationship which could and should be resumed.
  • The position of both sides has merit and, if tried, the range of possible outcomes for the dispute is broad.
  • Special factors are at stake in the dispute (e.g. vital corporate interest, need to avoid an adverse precedent, protection of reputation, runaway verdict or judgment, etc.)
  • It is advantageous for both sides to have a greater degree of involvement and some control over the outcome of the dispute.
  • A presentation by both sides might facilitate a more realistic attitude about the case and/or a better understanding of the issues. 
  •   The mediator may help break a stalemate or diffuse emotions and hostility which are impeding a settlement
  • Inflicting damage to the opposing side is not of primary interest.
  • Help is desired in deciding upon or minimizing the amount of discovery needed for the case.
  • The case does not have a significant amount of money at stake and is not worth the expense of trying.