Chapter 6 – Non-judicial Dispute Resolution: “Alternative Dispute Resolution” (ADR) and “Collaborative Dispute Resolution” (CDR)

Chapter 6 – Non-judicial Dispute Resolution: “Alternative Dispute Resolution” (ADR) and “Collaborative Dispute Resolution” (CDR)

The term and formal practice of ADR first appeared in the United States in the early 1970s, as non-judicial approaches and procedures to address overcrowding of court dockets and as part of a social movement to empower parties in dispute to voluntarily resolve differences on their own with the assistance of a neutral and impartial third party, often a mediator or arbitrator. Since this time, the practice of “ADR” has spread throughout the world to address a wide range of both civil and criminal disputes.

While in the U.S., ADR procedures have been seen as an alternative to state-sponsored judicial adjudicative processes, and often as procedures of second choice for disputants; in Liberia this dynamic is turned on its head. In Liberia, “rural citizens pursue justice almost entirely through customary dispute resolution procedures. A 2008 survey by Oxford University found that rural citizens took only four per cent of criminal cases and three per cent of civil cases to the formal court. Chiefs, elders or spiritual leaders resolve disputes based on widely accepted cultural paradigms.³⁴In Liberia, it can easily be argued that the procedures of first resort for most citizens for dispute resolution are processes outside of the formal adjudicative court system. They prefer to use a range of informal, customary and other mechanisms provided by customary authorities or members of civil society. The much less common form of dispute resolution, and truly the alternative of second or last resort, is going to court.

One additional term should be noted, “collaborative dispute resolution” or “CDR”. This term has gained growing acceptance around the world and in Liberia as a descriptor for dispute resolution mechanisms and procedures that involve parties collaborating to resolve their differences through negotiation, mediation, arbitration or other voluntary procedures. The term does not have the downside of calling a non-judicial process an “alternative”. CDR is one of many choices that disputants can select from. The term was first introduced in Liberia by the Norwegian Refugee Council to describe its dispute resolution work, and has also been adopted by the Liberian Land Commission.³⁵

ADR and CDR include both unassisted procedures, such as negotiation and cooperative/collaborative problem solving by disputing parties alone, as well as processes that involve intermediaries who help facilitate or mediate consensual agreements. It also includes customary and non-customary procedures in which disputants voluntarily submit issues in dispute to a trusted and mutually acceptable third party to make either a non-binding recommendation or make a decision and binding settlement. (These latter procedures are in contrast to state judicial procedures in which participation is compulsory, and decisions are binding.)

Characteristics of ADR/CDR

ADR or CDR has the following general characteristics:

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  Dispute resolution mechanisms and procedures are entered into voluntarily by disputing parties (and without the coercion involved in state-based judicial adjudication).
  

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  The procedures do not involve litigation, a judge or jury to make a decision or award.
  

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  The processes may or may not involve the assistance of a third party.
  

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  Assistance may be provided by customary authorities, civil society organizations, individual actors or personnel from either judicial or executive governmental agencies who do not act in the capacity of a judge.
  

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  Third parties are, to varying degrees, impartial regarding their relationship to disputing parties and neutral regarding issues in dispute.
  

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  The procedures used generally involve efforts by involved disputants and/or a third party to reach a voluntary, amicable and mutually acceptable consensus-based resolution of issues in dispute.
  

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  The procedures – if desired by disputants, needed or as part of the process itself – may include a nonbinding recommendation or binding decision-making component by an acceptable third party.
  

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  Agreements may be informal and without legal standing, formalized as legal contracts or submitted to a court or other authoritative governmental body for formal recognition and approval. (This latter method of formalizing an agreement may be used: a) if parties have filed a case with a government court, and it has been referred to mediation or other form of dispute resolution for settlement; b) disputants have filed a case in court and have reached a voluntary settlement before a judicial ruling; or c) disputants’ negotiations or facilitated dispute resolution results in a proposed policy, rule, regulation or procedure that requires approval by a government entity to implement.)
  

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  Compliance by parties to outcomes reached through these voluntary dispute resolution mechanisms or procedures is generally voluntary, but may be encouraged by various means of social pressure, contract or submission of a stipulated agreement in a legal case to a court and judge to have oversight, or if necessary, enforcement.
  

Before looking at ADR/CDR currently practiced in Liberia, it will be helpful to provide a brief overview of ADR/CDR procedures practiced around the world for use as a potential menu of what could be enhanced or created anew in the country. In general these include: a) procedures to increase information available to disputants or third parties; b) methods for unassisted problem solving or dispute resolution; c) third party assistance to help disputants reach consensus decisions and voluntary agreements; d) procedures that involve voluntary submission of issues in dispute to a mutually acceptable third party who is authorized by disputants to make either a non-binding recommendation on how they could settle their differences, or a binding decision; and e) hybrid Processes that involve both voluntary agreement-making and third party decision-making to help parties reach agreements on some issues and obtain non-binding recommendations or decisions on those where a consensus is not possible. A range of possible options is detailed below in Table 2: Common ADR/CDR Procedures. (More detailed information on each procedure may be found in Appendix A: Definitions and Descriptions of Alternative Dispute Resolution (ADR)/Collaborative Dispute Resolution (CDR) Procedures.

Table 2: Common ADR/CDR Procedures

Procedures to Increase Information Available to Disputants or Third Parties Situation assessments, conflict analysis or case investigations Information exchange meetings Field or site visits Surveys Fact-finding Joint fact-finding (with disputants) Case evaluation Early neutral case evaluation

Methods of Unassisted Problem Solving or Dispute Resolution  Cooperative/collaborative talks or problem solving  Negotiation

Table 2: Common ADR/CDR Procedures (Continued)

Third Party Assistance to help Disputants reach Consensus Decisions and Voluntary Agreements Conflict resolution coaching Facilitation Mediation (and restorative justice processes) Conciliation Settlement conferences

Third Party Non-binding or Binding Decision Making  Arbitration

Hybrid Processes that may involve Voluntary Agreements and Third Party Decision Making Customary dispute resolution processes Mediation-then-Arbitration Med/Arb Arb/Med Ombudsman