Subject: ALTERNATIVE DISPUTE RESOLUTION (ADR)

Submitted By: MUHAMMAD SHOAIB AHMAD

(LL.M., 4th SEMESTER, MID-TERM ASSIGNMENT)
ROLL# A.LLM010141086

Submitted To: KHUSHBAKHT QAISER

LLM (UK)
Advocate High Court

POST GRADUATE INSTITUDE OF LAW (PIL)

Topic:

How ADR is perceived in the context of globalization and what are the strategic barriers to
dispute resolution?

Table of Contents:
12345-

Introduction
Definition of Alternative Dispute Resolution
The Origins of Alternative Dispute Resolution
ADR in the context of globalization
Strategic Barriers to Dispute Resolution
5.1- Structural barriers
5.2- Psychological barriers
5.3- Inadequate Planning and Preparation
5.4- Lack of Information and Negative Perceptions
5.5- False First Impressions and Perceptions
5.6- Potential cost, delays and lack of resources
5.7- Insufficient Focus on Underlying Interests

6- Conclusion
7- Bibliography

1- Introduction
The provision of effective dispute resolution is the core concern of domestic as well as
international legal system. The aim of devising mechanisms to afford effective dispute resolution
is to ensure that disputes are solved through effective and efficient means for the benefits of the
disputants and the society in general. So as to attain this core objective, states and the
international community have been searching various ways of resolving dispute than insisting on

the traditional way of resolving dispute through court litigation which is mostly ineffective and
inefficient. Now days, therefore, Alternative Dispute resolution has got wide acceptance to
resolve dispute due to its perceived advantages. Needless to say, even court officials, who used to
consider ADR as taking of court power, recognized the need of ADR as a choice to settle dispute.
Pre-trial conference and compulsory (court ordered) arbitration might be an indication for this.
Alternative Dispute Resolution is a generic term used to describe a range of procedures designed
to provide ways to resolving a dispute as an alternative to court procedures. ADR had been used
by human society since ancient times though it gets wide acceptance and recognition in countries
laws recently. ADR methods, in comparison with court litigation, have various advantages
though it is not free from different short comings. In this chapter issues in relation with the
meaning of ADR, its historical development, its comparative advantages and disadvantages will
be dealt. The short comings of court litigation also enumerated to show the rampant problems of
litigation.
2- Definition of Alternative Dispute Resolution:
Alternative Dispute Resolution ADR comprises of various processes of resolving disputes. It has
been defined by the National Alternative Dispute Resolution Advisory Council as:
an umbrella term for processes, other than judicial determination, in which an
impartial person assists those in a dispute to resolve the issues between them. ADR is
commonly used as an abbreviation for alternative dispute resolution, but can also be
used to mean assisted or appropriate dispute resolution. Some also use the term ADR to
include approaches that enable parties to prevent or manage their own disputes without
outside assistance. 1
This definition addresses issues raised in regards to the use of the word alternative which has
been argued connotes ADR processes are alternative to court processes. It has also been argued
that alternative dispute resolution sounds a rather marginal activity undertaken by old
hippies2 Sir Lawrence Street recognizes the debate on the meaning of ADR and in particular
what A in ADR stands for but argues that ADR describes:
1 National Alternative Dispute Resolution Advisory Council, Dispute Reso lution Terms: The Use of
Terms in (Alternative) Dispute Resolution, September, 2003 at p. 4.

an holistic concept of a consensus-oriented approach to dealing with potential and

actual disputes or conflict. The concept encompasses conflict avoidance, conflict
management and conflict resolution. The over-arching element of ADR in addressing
these three aspects of conflict is the consensus-oriented philosophy that pervades the
newly evolving recognition that conflict avoidance, management and resolution are
simply three closely related sequential approaches each of which has relevance and
application within the broad field of social, commercial and personal interaction. This is
inherently the province and function of ADR.3
ADR is viewed as an all encompassing process of dispute or conflict management, avoidance
and resolution and processes may fall into three categories: facilitative, advisory and
determinative. Processes from two categories when combined are known as hybrid processes.
Facilitative processes include:
mediation, [where] the ADR practitioner assists parties to identify the issues and
reach an about the dispute. Advisory processes, such as conciliation or expert appraisal,
employ a practitioner to advise the parties about the issues and/or possible outcomes.
Determinative processes, such as arbitration, involve a decision being made by the third
party. There are also other types of ADR such as collaborative practice.4
3- The Origins of Alternative Dispute Resolution:

2 ODonnell Carol, in National Alternative Dispute Resolution Council, ADR Terminology: Responses to
NADRAC Discussion Paper 2003 at p. 12

3 Street, L., in Natio nal Alternative Dispute Resolution Council, ADR Terminology:
Responses to NADRAC Discussion Paper 2003 at p. 10. See also Street, L.,
Foreword in Sourd in, Tania, Alternative Dispute Resoluti n , Thomson Reuters,
2008 at vii viii. Also, Sourd in, T., Alternative Dispute Reso lution , Thomson
Reuters, 2008 at 3 -5. See also Spencer, D. and Hardy, S., Dispute Resolution in
Australia: Cases, Commentary and Materials , Lawbook Co., Thomson Reuters, 2009
at 6 14.
4 Ibid.

The origin of ADR is predate and spread beyond the original geographic boundaries of Western
civilization.5 Early forms of conciliation and amicable settlement, at the roots of modern-day
ADR reveal its primary motivationto realize equity between two fighting parties. Seeking
compromise by moderating contradictive or competitive interests reflects the human preference
for reconciliation over confrontation. To avoid open dispute and violent consequences of
coercive force in executing a judicial decision. The disputing parties have long recognized the
advantage of pursuing commonalities rather than differences. This pursuit and the process that
brings parties together have always been a point of honor for parties and arbitrators alike. The
consensual nature of either opting for dispute resolution or deciding the outcome of a dispute by
the parties is a cornerstone element of ADR. The aspect of attenuating the common courts
backlog is not new, either. In 400 BC, Athens instituted the position of a public arbitrator to
relieve the overburdened courts and provide more rapid relief for those cases the disputing
parties believed could be solved outside the formal path of justice. While the option of arbitration
was voluntary, exercising the office of the arbitrator was considered a civic obligation,
sanctioned with loss of citizenship. The idea of bringing technical expertise to bear on disputes
was apparent in predecessors of modern-day ADR, particularly in the traditionally senior role of
the neutral third party. The law merchant, commercial law born amid the mercantile revolution of
the Renaissance who functioned on special privilege outside the courts exclusively within the
commercial realm, exemplifies this role. Today, this role is reflected by the more technical
seniority of the specialist mediator, facilitator, or arbitrator. As ADR began to slowly spread
around the world first, in common-law countries such as the United States, the United
Kingdom, Canada, Australia, and New Zealand consideration turned to whether ADR could
benefit developing- and emerging-market countries. Since then, many ADR projects have been
initiated either as part of much larger projects (justice reform programs, for example) or as
discrete, stand-alone ADR projects with a primary focus on introducing ADR into a given
jurisdiction. Since the early 2000s, IFC has been at the forefront of developing ADR in emerging
economies and has developed extensive experience in considering whether ADR should be
implemented in any one country and, if so, what sorts of models should be considered. 6 The

5Jerome T. Barrett and Joseph Barrett, A History of Alternative Dispute Resolution: The Story of a
Political, Social, and Cultural Movement (San Francisco, Calif.: Jossey-Bass, 2004).

implementation of these projects has helped to identify, through experience, the positive and
negative drivers to developing ADR in any given country.
4- ADR in the context of globalization:
Globally the most frequent ADR service prevalent has been mediation, a process wherein an
impartial third party (a mediator) assists disputants in finding a mutually acceptable solution to
the conflict. It is both voluntary and confidential. Today, trained mediators and experienced
attorneys provide confidential mediation services to parties in formal proceedings. These
services may be provided before or after the commencement of litigation. Mediation has a
number of advantages over litigation, as it is typically quicker and less expensive. Through
mediation, parties can eliminate the uncertainty of an adjudicating authority and its decision and
can control the outcome of the dispute to be mutually acceptable to the parties.
ADR in the 21st Century means finding domestically and internationally a quicker, inexpensive
and more effective system alternative to litigation which is time consuming and expensive.
Concerned about the efficiency of national court system in cross border disputes, foreign
investors normally prefer mediation or arbitration as the preferred mode of dispute resolution.
Dispute settlement through Arbitration/ADR is not only domestic but also an increasingly
growing international phenomenon in the context of cross border transaction.
In many societies, in the absence of State law, customary laws enforced by councils of elders and
notables, governed aspects of individual behavior and social interaction. Unwritten, it
represented the day to day practice of the people concerned and settlement of disputes by
elders/notables. In some African tribes, customary laws applied to succession, traditional title,
office of the tribal chief, village headmen, inheritance, liability for debts, rights of widows. All
the disputes relating to these were resolved by way of negotiations and conciliations through
tribal chief or village headman.
Dispute leaders go so far as to contend that ADR plays an instrumental role in emerging
democracies. In many parts of the world, radical new participatory institutions are needed to
elevate good governance. Some communities assert that the practice of ADR is introducing a
6 Ibid.

culture of peace into their violent societies.7The nearly decade-old Inter-Tajik Dialogue that
moved Tajikistan from civil war toward civil society exemplifies. 8 Post war reconstruction is
also embracing facilitative process at the community level, with a focus on development.
Lebanon is one archetype. Intra-community and inter-religious dialogue is being used to elicit
local views, guide expression in constructive ways, bring local and national leaders together on
priority issues of shared concern, and create ideas for reconciliation. Back channel negotiations
have purportedly increased inter-communal understanding. A community relations board is
planned that will facilitate local dispute resolution. 9
Collaborative approaches fill critical gaps in legal capacity. Consequently, international
mediations have increased threefold over recent decades. Intra-national and cross-ethnic disputes
often fall outside international authority. Without alternatives like those mentioned here, minority
ethnic groups may see their only alternative as violent effort for independence, to form their own
nation-states.10
The international experts interviewed for this article stress proactive conflict prevention and
transitional justice including local community leadership, particularly those representing the
groups historically most excluded or marginalized in decision making. ADR plays a foundational
7 HAROLD SAUNDERS, A PUBLIC PEACE PROCESS: SUSTAINED DIALOGUE
TOTRANSFORM RACIAL AND ETHNIC CONFLICT (1999). (The alternative, closed door
decisionmaking by a global elite exercising coercion rather than negotiation, is
predictably criticized.)
8 Ibid.
9 Jonathan Wilkenfeld, Kathleen Young, Victor Asal and David Quinn, Mediating
International Crises: Cross National and Experimental Perspectives, 47 J. CONFLICT
RES. 285 (2003).
10 Oliver P. Richmond, 1999. Mediating Ethnic Conflict: A Task for Sisyphus?
International Studies Association, Wash. D.C.; see, e.g., Keith Swartzendruber,
Eliciting Peace: Mediating the Sandinista Miskito Conflict at
http://www.geocities.com/keithswartzendruber/eliciting_peace1.htm (2002) and the
Carter Center description of its mediation in Sudan and Uganda at
http://www.cartercenter.org/peaceprograms/showdoc.asp?program
ID=12&submenu+pea

role in advancing good governance if the range of concerned, impacted and interested
stakeholders designs.11 Baruch found the most satisfied parties to mediation reported the highest
process control, participation in decision-making, as well as full expression. Similar results are
found with negotiated rule-making. Consciously creating space for dialogue, communication
and positive debate increases civil society buy-in, or ownership of dispute resolution and
resultant responsibility for necessary change. Both are essential to sustain reform. 12 People are
more ready to accept decisions that go against them if they have a part in the decision-making
process.
5- Strategic Barriers to Dispute Resolution:
Barriers can be real, created, or perceived. Most stem from simple communications issues
between the parties. Barriers can be verbal and non-verbal. But no matter the cause of the
barriers, they need to be overcome to allow effective communications which facilitate good
negotiations. Barriers always exist in ADR. They can be intangible or tangible, real or imagined.
They come in all shapes, colors and sizes. They are caused by many things. A few of the most
common are listed below.13
These barriers can be strategic, structural, or psychological. Strategic barriers relate to the
security risks involved in making peace in cases where the parties are required to make concrete
concessions (territorial). Strategic barriers may also relate to the efforts of the parties to
maximize their gains at the negotiation table and to drive a hard bargain at the expense of the
other side by employing hard strategies and tactics, while ignoring the need to build and maintain
peace in both the immediate and long-term future.
5.1- Structural barriers:

11 R.A. Baruch Bush, What Do We Need A Mediator For?: Mediations Value Added
for Negotiators, 12 OH. ST. J. DISP. RESOL. 1 (1997)
12 Redfern A and M Hunter. 2003. Law and Practice of International Commercial
Arbitration. Sweet & Maxwell: London. pp. 135.
13 See the full text of the New York Convention, with the list of its contracting
states, at www.wipo.int/amc/en/arbitration/ny-convention/.

Structural barriers are shaped by the internal political structures of the negotiating parties.
Structural barriers create institutional and bureaucratic constraints that undermine the legitimacy
of the peace process and its conditions, costs, and benefits. Political institutions and agents, like
political elites, parties, and interest groups and also organizations such as the military and other
security agencies may oppose the peace process for political, ideological, or security reasons. 14
Such actors may reject those peace processes that they perceive as a threat to national and
security interests. Moreover, there may be spoiling groups that violently resist any peace process
that contradicts their views. Structural barriers to peace tend to become particularly powerful
whenever conditions lead to confrontations between state and non-state actors or between several
actors that vie for different forms of government and are influenced by vastly different arguments
for the legitimacy of the peace process.
5.2- Psychological barriers:
Psychological barriers are cognitive, emotional, or motivational barriers that are centered on
national narratives and collective memories, and which hinder any changes in belief systems and
attitudes towards the other side or towards the conflict. These psychological barriers affect the
ways in which information is perceived and interpreted and add to the mistrust of the other side
and of the peace process. Such barriers generate overconfidence that can impair the ability to
direct the course of events. They promote exaggerated expectations for the success of realizing
goals such as, for example, when they cause the negotiating parties to believe that time works on
their behalf, and against their rivals. Such barriers promote the importance of absolute values
justice, fairness and equality and undermine willingness to make concessions, to compromise,
or to take risks. These psychological barriers obstruct the ability of each side to assess the actions
and intentions of the other side correctly. They also create bias mechanisms that affect the
interpretation of each sides goals and strategies and further cause each of the negotiating sides to
underestimate the commitment of the other side to resolving the conflict and making
concessions. All of these barriers are interrelated and influence each other to the degree that it is
sometimes difficult to separate them.
14 See generally, Joe Epstein, The Powers of Psychodynamics in Shaping Mediation
Outcomes (hereinafter cited as Psychodynamics), 2004 The Colorado Lawyer, Vol.
33, No. 1, p15.

5.3- Inadequate Planning and Preparation:

When parties set a case for mediation, they should determine what discovery needs to be done in
advance of the mediation. Insufficient discovery often means that the parties are not able to
accurately evaluate the case. On the other hand, waiting too long to mediate can eliminate the
transactional cost savings of the mediation process. For example, in a multi-party burn case with
clear liability, we learned from the defendants the damage information they required to evaluate
the case and then arranged for the plaintiffs counsel to provide that information. We helped
arrange for pre-mediation independent medical evaluations. A pre-mediation caucus with the
plaintiffs was also arranged. Finally, in this case as in other high value cases, we ascertained
information on the various layers of insurance coverage, and were able to facilitate having the
necessary decision-makers at the table.
In another recent multi-party case, we met with every party separately in advance of the
mediation. Plaintiffs were asked to make pre-mediation demands and defense counsel were asked
to bring the appropriate in-house counsel, risk managers and/or adjusters.
5.4- Lack of Information and Negative Perceptions:
An obvious barrier is the lack or insufficiency of information among state decision makers about
the basics -- ADR processes, how they work, where and when they should be applied and what
advantages and disadvantages they have. Several state center survey respondents indicated this
was a serious or very serious barrier to their activities.15
This perception was noted as a barrier for private stakeholders, less so for government officials,
in the state center survey. Concerns typically underlying this perception were that traditional
processes worked best and the association of confidentiality meant back room deals was being
made. The Work Group discussed how an improper design of a dispute resolution system can
create a barrier to ADR approaches. If a system is not designed in consultation with all
stakeholders, the resulting system may ignore important interests and actually result in negative
perceptions about ADR and negative experiences with the processes.
15 Crowne CH. 2001. The Alternative Dispute Resolution Act of 1998: Implementing
a New Paradigm of Justice. New York University Law Review 76 (6): 1768.

One of the barriers identified both by the Group and the state centers was the lack of cost-benefit
analyses of ADR process applications. While most felt producing accurate cost-benefit studies
was a goal plagued with theoretical and practical pitfalls, most also agreed that this information
would be the most persuasive to elected officials making budget decisions about starting and
maintaining ADR systems and programs.

5.5- False First Impressions and Perceptions

This may be the most crucial barrier to successful dispute resolution. First impressions are
terribly difficult to change. Decision-makers make their decisions on the data available at the
time and they are slow to recognize and appreciate later contradictory data. The battleship once
set in motion is incredibly difficult to turn about. 16 Thus, the key is to make every effort to
establish a good first impression.
First impressions, which are generally lasting impressions, allow a person the luxury of not
thinking or reasoning. The very best way for parties to deal with this unfortunate and stubborn
shortcut is prevention. Thus, parties should make the most of pre-mediation opportunities to
favorably impress the opposing party. Perceptions are the lenses through which parties see
themselves and their positions and others and their positions. Selective perception or
stereotyping is frequently part and parcel of inaccurate first impressions. If parties cannot prevent
these negative first impressions, they must be uncovered and addressed during the mediation.
Like film producers and film directors, counsel must establish his clients first impression
before the mediation and reinforce it during the mediation.17
5.6- Potential cost, delays and lack of resources:
16 Arrow, K.; Mnookin, R. H.; Ross, L.; Tversky, A.; and Wilson, R. 1995. Barriers To
Conflict Resolution. London, W. W. Norton.
17 For an example of an agreement on short form arbitration, which limits the
time taken and costs, see the Arbitration Board Operating Guidelines for disputes
between the United States and Germany;
http://www.irs.gov/Businesses/Corporations/Arbitration-Board-Operating-Guidelines

The issues raised with regard to the potential costs of the arbitral proceedings are difficult to
address in two respects. Firstly, there is not enough arbitral experience in international taxation,
especially as to longer form arbitration, to be truly certain of the costs involved. Some countries,
mainly developed countries, perceive dispute resolution outside of the domestic courts as a costefficient option. Others, especially developing countries, fear that they will be confronted with
much higher costs than under domestic litigation. It is probably the case that the costs of
litigation (including the costs of hiring external lawyers) in many developing countries are often
much lower than in developed countries, and this may account for a difference in perspective as
to the relative cost of arbitration.

5.7- Insufficient Focus on Underlying Interests:

Too often negotiators focus on the zero sum game involving the distribution of money. While
this focus is appropriate, counsel, adjusters, and risk managers often miss the opportunity to
address core values that often impact the progress of mediation and the ultimate level of
satisfaction that can flow from mediation. 18To this end, we fashioned a settlement that included a
meeting between the relevant staff and the parents, counseling for the parents and grieving
children, and a risk management program. During the mediation, there were three face-to-face
meetings between the hospital administrator and the parents that were important parts of the
healing aspects of the mediation. Further, the mediator made sure that he addressed grief issues
with the parents head on.

6- Conclusion:
When tearing down the barriers to dispute resolution, collaborative mediators should be like
Bob the Builder and construct a bridge to the other side. If parties and mediators address
the underlying needs, interests and concerns while being mindful of giving others face,
dignity and respect, they will resolve most disputes. The entities in developed countries will
18 Ibid.

often have greater financial power and technical expertise with which to pursue a favorable
dispute resolution. Since technology transfer is tied closely with economic development,
disputes may trigger public reaction. Moreover, language and cultural barriers can be
obstacles to effective communication, and questions may arise about how rights asserted by
developing countries may be accommodated by the existing IP regime.
The dispute-resolution policy can help to address these concerns. It can also provide strategic
benefits and minimize the risk of disputes escalating. The dispute-resolution strategies should
therefore be crafted with regard to the specific circumstances of the dispute and the
background of the parties. Ideally, a procedure that assists in mitigating economic
inequalities between parties should be identified and implemented. Technical, commercial,
legal, and social interests may need to be considered. In certain cases the result will be
compromise; in other cases, robust enforcement will be sought. Litigation, arbitration, and
mediation operate within very different paradigms. To adopt the most appropriate disputeresolution strategy for a potential or existing dispute, parties should understand the
differences between the procedures and determine which is most appropriate to the
circumstances of the conflict. Remember, litigation is not the only option. Arbitration or
mediation may offer a sustainable solution that will satisfy all the parties involved.

7- Bibliography:

1- OConnor SN. 2005. Intellectual Property Rights and Stem Cell Research: Who
Owns the Medical Breakthroughs? New England Law Review 39: 665.
2- Information in this section is largely extracted from the Guide to WIPO Arbitration.
WIPO Publication no. 919.
www.wipo.int/freepublications/en/arbitration/919/wipo_pub_919.pdf.
3- Redfern A and M Hunter. 2003. Law and Practice of International Commercial
Arbitration. Sweet & Maxwell: London. pp. 135.
4- Information in this section is largely extracted from the Guide to WIPO Mediation.
WIPO Publication no.
449(E).www.wipo.int/freepublications/en/arbitration/449/wipo_pub_449.pdf.
5- See the full text of the New York Convention, with the list of its contracting states, at
www.wipo.int/amc/en/arbitration/ny-convention/.
6- Information in this section is largely extracted from the Guide to WIPO Mediation.
WIPO Publication no. 449(E).
www.wipo.int/freepublications/en/arbitration/449/wipo_pub_449.pdf.
7- See the full text of the New York Convention, with the list of its contracting states, at
www.wipo.int/amc/en/arbitration/ny-convention/.