ADR, Mediation

ADR’s full potential yet to be realized: Huberman

By Mia Clarke, Associate Editor

The key to success of Alternative Dispute Resolution (ADR) is in its flexibility and adaptability to a variety of situations, Toronto litigator and commercial arbitrator Marvin Huberman writes in the fall issue of the ADR Institute of Ontario’s ADR Update.

Huberman, who is certified as a specialist in civil litigation by the Law Society of Ontario and is president of the ADR Institute of Ontario (ADRIO), says the field continues to evolve — from Alternative to Appropriate to Effective, thereby transforming ADR to EDR.

“When I received my Master of Laws degree in 1997, ADR signified ‘Alternative Dispute Resolution,’ a phrase encompassing a wide range of techniques that may be used to attempt to resolve a legal dispute without having to proceed to more traditional adversarial and adjudicatory processes such as litigation, hearings and appeals,” he writes.

“These include consensual or non-binding procedures like negotiation, neutral listener proceedings, early neutral evaluation, advisory opinions, the use of an ombudsperson, settlement conferences, peer review, mediation, the mini-trial, the summary jury trial, conciliation, neutral expert fact-finding and non-binding arbitration. It also includes binding adjudication such as arbitration and private judging."

Since he first began in the field, Huberman says ADR evolved into “Appropriate Dispute Resolution.”

He says the new approach “considers all the responsible dispute resolution options, including the courts and traditional adjudication, for people who are in conflict. It is hoped that the most appropriate method for resolving a particular dispute between or among specific disputants will be selected.”

Whatever the form, Huberman says the goals largely remain the same and have been described by ADR “gurus” Stephen Goldberg, Frank Sander and Nancy Rogers as follows:

  1. To reduce court caseloads and expenses
  2. To reduce parties’ financial and time expenditures
  3. To provide speedy settlement of disputes disruptive to the community and the parties’ families
  4. To improve the level of public satisfaction with the justice system
  5. To provide for resolutions tailored to the parties’ needs
  6. To increase voluntary compliance with case resolutions
  7. To restore the influence of neighbourhood and community values and the cohesiveness of communities
  8. To provide accessible forums to parties
  9. To teach the public to try more effective processes for dispute resolution than violence or litigation

“ADR has been hailed as a way to lessen costs, save time, reduce stress, build and strengthen relationships, provide more flexible processes and more party-sensitive and complex solutions than a traditional litigated outcome,” Huberman writes. “It is also intended to provide a structure for “win/win” solutions.”

He points out that winners of lawsuits are often losers “in terms of fees, frustration, wasted time and other factors not measurable in monetary terms, such as ruined relationships. The French philosopher Voltaire said: ‘I was ruined but twice — once when I lost a lawsuit and once when I won!’”

Huberman says ADR is being increasingly used in civil litigation over traditional adversarial methods. He says the major advantages that have been identified in international literature are:

  1. Increased settlement
  2. Improved satisfaction with the outcome or manner in which the dispute is resolved among disputants
  3. Reduced time in disputes
  4. Reduced costs
  5. Increased compliance with agreed solutions

“There are, however, ongoing debates among proponents and critics of ADR concerning the nature and extent of the perceived advantages and disadvantages of ADR, and the merits, risks and potential problems of different ADR options,” Huberman writes. “These include the concern that ADR, particularly mediation, delays dispute resolution, and that it can increase costs, especially when it comes to arbitration.”

He also says mediation is usually not suitable in cases of sexual harassment, violence, and other forms of abuse and power imbalances.

“So, when does ADR work? The key to success in ADR lies in its effective use, that is ‘EDR,’ ‘Effective Dispute Resolution,” Huberman writes.

“As professor Frank Sander of Harvard Law School proposed, one must ‘fit the forum to the fuss,’ that is analyze the particular dispute and then find the appropriate forum(s) to assist in facilitating resolution,” he writes.

Huberman says ADR’s “full potential, while recognized, has yet to be realized. Inventiveness and imagination will yield further ADR innovations and hybrid techniques and concepts. The process of evolution will continue.

“ADR presents challenges and opportunities. It is a tool offering variety, flexibility, adaptability and practicality — which, if appropriately and effectively used, promises to assist in fundamentally enhancing our justice systems, both private and public.”

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