Overview of dispute resolution processes and the ADR spectrum
Overview of dispute resolution processes and the ADR spectrum
This domain tests whether you can place each process on the ADR spectrum and explain what makes it distinct: who controls the process, who decides, whether the outcome binds, and how the process interacts with litigation and arbitration.
Core distinctions
- Negotiation is the only process with no neutral; parties retain control of both process and outcome.
- Mediation and conciliation add a neutral facilitator but leave decision-making with the parties; outcomes are normally settlement contracts, not awards.
- Early neutral evaluation gives a non-binding merits opinion to inform settlement.
- Expert determination is a contractual, usually binding, determination on a defined technical or valuation issue.
- Adjudication is a quick interim decision, often binding on a 'pay now, argue later' basis.
- Arbitration is consensual but produces a final, binding award enforceable under the New York Convention.
- Litigation is state-controlled and public.
A useful axis runs from interest-based, consensual processes (negotiation, mediation) to rights-based, determinative processes (arbitration, litigation). Another axis is binding/non-binding and final/interim. 'ADR' is an umbrella, not a synonym for mediation.
Worked example
A clause says: 'The parties shall negotiate for 30 days, then mediate, then refer unresolved disputes to arbitration in Singapore.' A payment dispute arises. The processes are sequential conditions precedent, not choices. Failure to negotiate or mediate may bar or delay arbitration, depending on the clause's wording and governing law. The arbitration is the binding determinative stage; mediation is facilitative and non-binding. If the clause said 'may mediate', it would not be a condition precedent.
Traps
- Calling arbitration 'non-binding'; it is binding and enforceable.
- Treating adjudication as final; it is often interim-binding.
- Assuming all ADR is confidential; confidentiality depends on contract, rules and law.
- Missing tiered-clause wording: 'shall' versus 'may' changes obligations.
- Forgetting that a mediated settlement is enforceable as a contract, not as an award unless converted.