Alternative Dispute Resolution

Mediation

Mediation is the most common ADR process, both privately and within courts. It involves an attempt to collaboratively resolve a dispute with the assistance of a neutral third party. In a mediation, the parties are encouraged to speak candidly about what they want to achieve or avoid in the case (i.e., their “underlying interests”), including matters that would not be disclosed in formal testimony. Therefore, the mediation process in highly confidential.

An impartial “mediator,” usually selected by the parties or assigned by the court or a mediation agency, facilitates the process. In some court-provided ADR programs, the judge hearing the case will serve as a mediator, although this approach is often disfavored because the judge may hear information that may impact impartiality if the case proceeds to trial. For this reason, some courts use a procedure that sends the case for mediation to another judge. In other courts, mediators (usually lawyers) on a court-approved list conduct the mediation.

The mediator presides over sessions with both parties present and also may conduct separate sessions with each party so they can discuss matters they may not want the judge or opposing party to hear. The goal of the mediation is to find a set of interests that are important to both parties and that can serve as the basis for a resolution. The mediation process can be highly structured or flexible. Although some jurisdictions authorize mandatory pre-litigation referral to mediation, the parties’ agreement must be voluntary. In most cases, the mediated agreement cannot be appealed. This agreement is typically enforceable as a contract.

Party-led Negotiation

Court rules may require the parties to engage in independent negotiations prior to filing a case with the court. No judge is involved; rather the parties and their counsel engage directly in settlement negotiations.

Early Neutral Evaluation

Early Neutral Evaluation (or ENE) involves the participation of a neutral third party who is an expert in the subject matter of the case. ENE is usually set up by a court and is offered as one or more of a court’s ADR procedures. At an early stage of litigation, the “Neutral” reviews the parties’ claims and evidence and clarifies for the parties the central issues in dispute. The Neutral then provides an analysis of the strengths and weaknesses of each party’s position, which is typically provided to both parties. Through this process, the Neutral encourages discussion and may offer recommendations to facilitate settlement. The goal of ENE is to help parties make an early and realistic assessment of their case so they can either move toward settlement or refine the case more precisely to its core issues and evidence.

Arbitration resembles litigation: the parties are represented by counsel, the process is adversarial, claims are presented, evidence is exchanged, a hearing is held, and there may be witness testimony. Rules of evidence and procedure are typically less stringent than in litigation, enabling a more timely disposition. An arbitrator’s ruling is usually binding, and in some countries legal precedents allow only limited opportunity for appeal.

In some countries, courts offer non-binding arbitration. The parties may use the arbitrator’s advisory opinion to inform settlement negotiations, or they may agree to accept the arbitrator’s decision as the final disposition of the case.

The enforcement of binding arbitral awards and contractual provisions requiring arbitration is regulated by domestic and international law, in particular the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which has over 150 signatories.

Nigeria

The 1999 Constitution of the Federal Republic of Nigeria provides for settlement by arbitration, mediation, conciliation, negotiation, and adjudication. ADR methods are integrated into the civil rules of procedure, and Nigeria has ADR programs throughout the country. In Lagos, judges are required to encourage the parties to submit to ADR if one of the parties is interested. Cases are referred to the Lagos Multi-Door Courthouse, a court-connected ADR center that identifies the method of dispute resolution most appropriate for the dispute. Cases from other jurisdictions may also be referred to the Lagos program.

Rwanda

In 2023, the Rwandan Ministry of Justice presented a new, national conflict resolution policy to encourage the broader use of ADR mechanisms. The national Dispute Resolution Center was opened in 2024 to lead these efforts. Community-based dispute resolution has a long history in the country. The Abunzi are locally elected mediators in Rwanda who are authorized by the state to invoke “traditional values” in the resolution of disputes. The Rwandan government recognized the Abunzi in a 2006 law as a way of providing affordable, accessible, and decentralized access to justice. Before filing a complaint in a local court, individuals must first attempt to have their dispute mediated by the Abunzi; this applies to most minor criminal and civil cases.

Canada

Canada offers a broad variety of ADR options for litigants. Some of its jurisdictions, including British Colombia, have mandatory private mediation that is triggered by one party serving another with a notice of intent to mediate. If the mediation fails, the parties can proceed to court and nothing discussed or presented during mediation is admissible in the legal proceeding, unless it is otherwise admissible. Some jurisdictions require the parties to attempt mediation during the pretrial phase of litigation, others offer voluntary mediation and early neutral evaluation.

Ecuador

Ecuador has a long tradition of mediated dispute resolution within its indigenous communities. A 1997 law recognized mediation settlements as final, enforceable judgments. The new constitution (2008) recognizes mediation as an alternate procedure for dispute resolution and the 2008 Arbitration and Mediation Law integrated ADR into the formal justice system. The legislation requires that mediation be held prior to arbitration and includes provisions on initiating mediation, confidentiality, settlement, the creation of mediation centers, and provisions addressing community mediation for indigenous groups. Ecuador has also promoted the use of mediation by codifying a directive to resolve certain disputes through mediation, for example restructuring debt.

Peru

Peru also has a tradition of community-based mediation. In 2001, pretrial mediation was made mandatory for all civil and commercial cases filed in court. Mediation skills are taught in law schools and there are mediation training centers throughout the country. The implementation of mediation programs has reduced court backlogs and had a beneficial impact on the resolution of disputes in schools, the healthcare system, and for environmental conflicts.

Trinidad and Tobago

Trinidad and Tobago enacted legislation in 1996 authorizing the use of alternative dispute resolution; programs were implemented in many parts of the country. This legislation was replaced by the 2004 Mediation Act that authorized court-connected mediation for civil and family disputes, regulated by a new Mediation Board. The courts use varied ADR techniques including conciliation and arbitration. In 2019, the judiciary institutionalized a combination of court-connected mediation and the use of settlement conferences. There are also community mediation centers throughout Trinidad and Tobago.

The United States

ADR is used extensively in the United States. There are court-connected ADR programs, independent providers (public and private), and organizations that offer subject-specific ADR services for disputes involving insurance, labor, and financial matters. Administrative agencies on both the state and federal level also offer access to ADR.

Federal

The Alternative Dispute Resolution Act of 1998 requires every federal district court to implement an ADR program with at least one form of ADR for civil cases. Under this law, courts may require litigants to participate in either mediation or early neutral evaluation. Each federal court can decide which ADR mechanism(s) to provide, the types of cases to refer to ADR, and the qualifications and compensation of ADR neutrals. In some courts, judges have the option to serve as mediators or may refer cases to a colleague for mediation. Other courts have professional mediators on staff or refer litigants to a list of vetted non-court providers, most commonly lawyers admitted to the court’s bar.

State

Many states, including California, Florida, New York, and Maryland, have an ADR office, center, or division within their court systems. Most states also have an extensive network of private ADR providers, and courts may provide interested litigants with a directory. Many states have community-based mediation centers that offer low or no-cost services, which may receive cases on referral from a local court and may also serve people who have not filed cases in court.

India

Mediation has a long history in India, dating back to the Vedic period, 1500 – 500 BCE when disputes were resolved at the community level by elders, called Panchayat, or neutral third parties called Panchas. Under British rule, mediation was integrated into the justice system and has since been codified in the Civil Procedure Code and endorsed by the Supreme Court. India also has the Lok Adalat (People’s Court), a legally recognized and binding forum for resolving certain types of disputes amicably. Lok Adalats are organized by state or district legal boards/committees and are generally composed of three conciliators empowered to facilitate settlements between parties. These settlements must be voluntary and are binding with no appeal. The conciliators may be retired judges, members of the bar, elders of the locality, or members of voluntary social organizations.

The Philippines

The Katarungang Pambarangay is separate justice system recognized by the judiciary of the Philippines and calls for certain types of local disputes to be mediated, arbitrated, or conciliated in accordance with traditional Filipino values of amicable settlement. For some cases falling under the jurisdiction of the barangay system (a type of city council), the parties must attempt to mediate or arbitrate the case locally through the Katarungang Pambarangay system before filing suit in the formal justice system. In certain communities, the laws and customs of the community are applied with the same force and effect as written law.

The Philippines also has an extensive court-connected mediation program. In 2001, the Supreme Court created the Philippines Mediation Center and tasked the Philippines Judicial Academy with implementing programs and training mediators. The Center has divisions in first and second level courts throughout the country. The Office for Alternative Dispute Resolution, within the Department of Justice, is responsible for promoting and expanding the use of ADR in the public and private sectors as well as monitoring and evaluating these programs.

Hong Kong

Hong Kong is one of the top five locations for international commercial arbitration. In 2010, Hong Kong implemented civil justice reforms to provide more comprehensive procedures for parties seeking to use court-connected or private mediation to resolve disputes. Hong Kong is also one of the first Asian jurisdictions to adopt an “apology ordinance” aimed at permitting parties to make apologies; apologies are inadmissible in court if litigation ensues.

Australia

Alternative dispute resolution, including arbitration, mediation, conciliation, and restorative justice are extensively used in Australia. Federal legislation was introduced in 2011 requiring parties in civil disputes to take “genuine” steps to resolve a dispute before filing suit in court. All of Australia’s courts have mediation programs for civil and family disputes and most courts have statutory authority to refer cases to some type of ADR; in some instances this is mandatory. The court registrar or a judge typically serve as mediators for court-connected programs. There are also numerous private providers and non-court publicly funded programs.

The United Kingdom

Although ADR is commonly used in the United Kingdom, a 2004 decision by the Court of Appeal held that it cannot be made mandatory. The types of ADR mechanisms used in the UK include conciliation (similar to mediation), early neutral evaluation, arbitration, judicial appraisal (former judges and senior barristers are asked for their view of the case), and med-arb (hybrid process where the parties submit their dispute to mediation and if no resolution is reached an arbitrator will decide the case).

The UK also has a procedure called mini trial/executive tribunal. The case is presented to a tribunal made up of an independent third party and a panel of experts (often senior executives from each party). The tribunal determines how the mini trial will proceed, rules governing disclosure and witness testimony, and whether the tribunal’s ruling will be binding. The mini trial takes the form of court proceedings but does not follow the strict rules of evidence. The tribunal hears oral arguments from both sides as well as experts and may ask questions. The tribunal deliberates with the third-party neutral acting as an independent mediator to facilitate a resolution. As with the summary trial procedure in the United States, mini trials are typically used only for large-scale commercial disputes because of their complexity and expense.

Russia

Mediation was formally authorized in Russia in 2011; however, it is not used broadly. Parties in civil disputes can seek mediation from the courts or through independent implementers. Mediation may be initiated at any stage of the civil case proceeding, without cost. A retired judge usually serves as mediator. If the parties seek private mediation, they must do so before trial hearings begin. Arbitration of international commercial disputes has a longer history in Russia and is more widely used.

Italy

Italy has instituted significant incentives for parties to pursue mediation. For certain types of disputes (inheritance, landlord/tenant, medical malpractice, certain commercial cases), parties who refuse to attend initial mediation meetings can face sanctions, including being required to pay a special court fee. Parties who successfully mediate and reach a settlement agreement are eligible to receive a tax credit of up to 500 euros and a property tax waiver (related to the settlement agreement) of up to 50,000 euros. Mediated settlement agreements are immediately enforceable. Parties do have the option of terminating mediation after the first session.

Norway

Norway is considered a leader in civil mediation among the Nordic countries. The 2008 Dispute Resolution Act states “parties shall investigate whether it is possible to reach an amicable settlement of the dispute before action is brought and shall make a strong attempt at settlement.” This mandate reflects the country’s historic tradition of informal and amicable dispute settlement. Norway offers many different types of ADR, including court-connected mediation, where the judge usually serves as mediator, as well as non-court affiliated conciliation boards and other private services. If parties pursue mediation outside the court system, they must do so before filing their case. Approximately 40-50 % of all court cases are resolved by judicial settlement efforts or court-connected mediation.

Poland

Mediation in Poland is authorized by the Code of Civil Procedure and is used extensively for civil and commercial disputes. In 2010, the Ministry of Justice launched an initiative to support mediation and created a network of mediation coordinators attached to courts throughout the country. The websites of regional courts post a list of institutions and professionals authorized to conduct mediation; most specialize in certain types of cases such as commercial, employment, and family matters. Although ADR is voluntary, the parties are obligated to file a statement in court stating whether they have tried mediation or another method of out-out-court settlement and, if not, the reasons it was not pursued.

Egypt

Community-based dispute resolution has a long history in Egypt, tracing to evidence found in papyrus from Ptolemaic Egypt as well as Islam’s emphasis on the amicable settlement of disputes. However, ADR is not widely used in the formal justice system. Egyptian law authorizes mediation in the family courts (conducted by a staff member ) and the economic courts (conducted by a judge). There are three providers of dispute resolution services in Egypt: The Arab Mediation Center, Cairo Regional Centre for International Commercial Arbitration, and The Investors Dispute Resolution Centre.

Iran

Mediation has been practiced in Iran for years as part of the Islamic tradition of resolving disputes through settlement (solh). This informal method of dispute resolution continues to be used in rural areas. Iran’s civil procedure code states that judges shall try to resolve disputes through Sazesh (a form of settlement conference) before proceedings formally commence. Parties can also opt for Sazesh at any stage of proceedings, including appeal. In 2001, legal reforms introduced a Dispute Resolution Council, a government organization within the judiciary, to mediate certain types of cases. All civil cases can be mediated by these Councils, as well as certain types of pardonable crimes. If the parties fail to reach a settlement within three months, the court will hear the case.

Jordan

In 2006, Jordan issued a new law formalizing mediation in the court system. Once a civil case is filed with the Palace of Justice, the court refers the dispute to a court-based mediation center run by mediation judges. Although private mediation is practiced, privately brokered settlements lack the enforcement mechanisms available for parties who settle in a court-connected mediation.