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ADR techniques

Non contentious methods of dispute resolution -instruments of conflict management alternative not only to judgments but to court proceedings - are the ripe fruits of the crisis of modern law systems: they call for new principles and ideas to effectively tackle the swift changes of contemporary societies. They are informal, mostly more flexible, instruments compared to the rigid law schemes and seem to recall pre-modern cultural structures. What we call informal justice, or ADR methods, started to spread in the early '70s of the last century in the United States. The idea of informal justice initially unified all those instruments of conflict management alternative to formal-legal procedures. The rapid growth of informal methods of conflict resolution had not been politically planned: it was rather actual practice needing its own justifying theory (Cfr. Centres for democracy and Governance, Alternative Dispute Resolutions Practitioners's guide, March 1998).

When we speak of ADR (Alternative Dispute Resolution) we generally refer to those methods or procedures or systems that allow to lawfully settle a judicial dispute without resorting to court proceedings and legally binding decisions. The range of alternative dispute resolution systems is quite extensive and besides the most common procedures (conciliation or arbitration) it includes quite specific methods accounting for the most diverse needs.

In the Italian law system ADR methods are now commonly implemented, especially to business and trade law that allows the application of alternative dispute resolution instruments already at contract negotiation level. These guarantee adequate responses and efficient results with clear advantages for the continuation of business relations.

The spreading of ADR was such as to spur a growing number of companies, associations, agencies and public administrations to develop ad hoc contract and regulation models and broaden their reach also beyond the mere commercial field. Besides, several government norms have regulated the application of ADR systems as an essential support for the traditional judicial system, and the European Union repeatedly expressed its favour on the development of ADR procedures, especially in the field of petty disputes between enterprises and consumers.

All in all, ADR methods can be classified in "binding" and "non binding" methods according to the nature of the final document.

Non binding forms are:

- Deal-Making Mediation: one or more third parties coordinate especially delicate bargaining agreements involving a large number of parties in culturally biased settings or difficult matters;

- Partnering Dialogue: one or more neutral party attend meetings of partners who are going to realize a project, a partnership, a joint venture, with the purpose of identifying and preventing possible litigations;

- Negotiation: the most common and spontaneous form of dispute prevention, management and resolution, based on the direct bargaining between two or more parties concerning simple disagreements or more complex disputes.

- Conciliation or Mediation: a procedure based on the intervention of a neutral third party called to steer the parties' negotiation by facilitating mutual communication towards a constructive examination of positions and litigation issues for the purpose of reaching an agreement. Conciliation/mediation can be privately arranged or managed by agencies or institutions, with or without links to the judicial system;

- Early neutral evaluation: a third neutral expert issues a non binding assessment on the merits of each party's case having examined the relevant documents and witnesses;

- Expert evaluation: a form of expert witness aimed at suggesting a solution or expressing an opinion on the litigation issues;

- Mini-trial or Executive Tribunal: complex and formal assessment procedure based on procedural rules similar to normal trial proceedings. The parties are usually accompanied by their legal counsels and the appointment of consultants is quite common. The evaluator can be an ad hoc appointed third party, a judge or an expert panel.

Binding forms are:

- Expert determination or adjudication (contract expert evaluation): a neutral expert issues a binding evaluation after having examined documents and/or witnesses;

- Arbitration: a form of private trial run by arbiters purposely chosen by the parties for the purpose of settling a dispute outside the court. "Ritual/formal" arbitration follows the rules set forth by the code of civil proceedings and the arbiters' judgments are legally binding. "Non ritual/informal" arbitration leaves autonomy of forms and the arbiter's decision is a mere contract that the parties agree to comply with. Arbitration can be "managed" by an organization or an agency, or can be organized by the parties or their arbiters;

- Quick Arbitration: informal arbitration generally based on the principle of orality. It is usually referred to for petty disputes;

- High-Low arbitration: arbitration is limited to certain issues or to a certain minimum /maximum value; it can concern the amount of compensation or be limited to a mere liability decision;

- "Baseball" arbitration: the arbiter is to decide on conclusions that the parties submitted at the onset of proceedings, that are therefore limited to the collection of evidence. The final award selects only the best grounded offer.

- Rent a Judge / Jury: similar to a Mini-Trial. Parties agreed to remit a decision to a purposely appointed judge and/or a panel, who shall follow rules similar to those of court proceedings. The final award is legally binding.