Almost as long as courts have been used, people have sought simpler, more efficient and more cost-effective means to deal with disputes, processes known today as Alternative Dispute Resolution (ADR) techniques. While ADR methods as we know them have only been in place for a few decades, signs of ADR arguably date all the way back to a decree by Chinese Emperor Kang-Hsi (1654- 1722) who, in response to complaints of corruption in the Chinese courts, decreed in part:
"... the good citizens who may have difficulties among themselves will settle them like brothers by referring to the arbitration of some old man or the mayor of the commune. As for those who are troublesome, obstinate and quarrelsome, let them be ruined in the law courts; that is the justice that is due to them."
In a 1984 address to the American Bar Association, then-Supreme Court Chief Justice Warren Burger advocated for lawyers to increase their use of ADR. He acknowledged that while trials may be the only way to resolve some disputes, the legal system is too adversarial, painful, destructive, and inefficient to effectively manage all disputes.
Recent research indicates that the various dispute resolution mechanisms in wide use today are not meeting end user expectations and may never do so based on particular challenges, with arbitration being the worst offender, having failed to deliver a genuine alternative to litigation. Instead, in addition to the above issues with litigation, arbitration can also be a very costly, lengthy and complex process as we know. Arbitration is also arguably merely privatised litigation with the added cost of having to pay the 'judge/s', and a real alternative was always inevitable.
Mediation, a non-adjudicative form of dispute resolution, has existed for thousands of years across various societies globally with disputes between individuals, families and communities often mediated by respected community elders or spiritual leaders. In Arabic culture, for example, mediation is also deeply rooted through the concept of 'sulh', which is defined in various sources as resolution, fixing, reconciliation and making peace.
In mediation the parties attempt to resolve disputes by a settlement mutually designed by and agreed between them, with the settlement process and discussions assisted by a neutral third party. For the avoidance of doubt, mediation provides a chance for a solution created entirely by and under the absolute control of the parties. No one else can interfere with, or impose a result that differs from, the settlement the parties wish to agree on.
Whereas arbitration is reported to be the dispute resolution method that least satisfies end user expectations, mediation reportedly sits at the top of the list for methods that meet or exceed party expectations.
Being a non-adjudicative process for resolving disputes, the existence of which many parties are still not aware of today, plus providing the opportunity for parties themselves to tell their story their way and to also have control over the outcome of the dispute, means mediation provides significantly more benefits than most have ever experienced from commercial dispute resolution.
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