This relatively new field of study is becoming more and more important, and it is of vital importance that all professionals and businessmen know of the various options that ADR presents.

Historically disputes were settled by means of adjudication by the Courts, in the normal litigation process. Whilst it is clear that adjudication by our Courts, remains important and unavoidable in certain instances, professionals and businessmen should know that there are other options in the field of ADR which might be more effective. It is accepted that litigation is time consuming, very expensive, cumbersome, and can destroy relationships between individuals and companies. If a dispute can be solved in a less cumbersome or people friendly way, less costly, then obviously it would be to the joint benefit of all parties concerned.

Informal Discussion
This is the most basic of all ADR methods and happens when parties through meeting with each other and solving their own problems, arrive at a settlement of their dispute.

Negotiation
This is slightly more structured than informal discussion mentioned above and in it’s most plain language is a forum where parties bargain and reach a settlement to a conflict that has arisen. Participation is obviously voluntary.

Mediation
This is a more structured process than negotiation and entails the participation of a neutral, mutually acceptable third party who assists the parties in resolving their dispute. The process is voluntary and the mediator has no decision making powers as the decision making still rests with the parties in dispute.

Conciliation
The conciliator plays exactly the same role as the mediator and the process is the same except for the fact that the conciliator may make a formal recommendation to the bodies on how to resolve their dispute. The parties may then accept the recommendation and formalise it in writing. The final decision as in conciliation lies with the parties.

Facilitation
A facilitator is someone who assists in bringing parties together and further assists in them reaching a settlement of their dispute. There is a large amount of overlapping between a facilitator and a mediator/conciliator, as once the facilitator has fulfilled his primary function, he may go over to the function of mediator/conciliator.

Mini Trial
Here parties present a summary of the facts regarding the dispute and an impartial third party renders an advisory opinion as to the outcome of the mini trial. Thereafter the parties may negotiate a settlement with or without the presiding third party.

Arbitration
An independent third party is appointed as an arbitrator, who then listens to the evidence presented to him as well as argument and renders a decision. This decision may be binding on the parties either through agreement or by operation of law, or it may be non binding in that the decision is advisory. Arbitration may also be voluntary or it may be compulsory either through the process of law or through a contractual agreement. There are various forms of arbitration from the less formal to the more structured.

Commission Of Enquiry
Parties to a dispute may appoint a commissioner to investigate and try to establish what gave rise to the dispute. Commissioners will ordinarily also be asked to make recommendations in regard to how the dispute is to be settled, as well as other policy considerations that are of importance.

Fact Finding
This is a mechanism by which someone (normally someone with technical expertise is appointed to establish what the relevant facts are and what gave rise to the dispute. Once he has given his finding, the parties normally negotiate the further conduct of proceedings depending on the situation. He would not enter the field of policy decision making or decide on matters of law. These in very general terms are the most important ADR mechanisms. There has been a lot of development in this field in the last ten years and there are further hybrid forms of dispute resolution which are available, which uses the mechanisms mentioned above in various forms. These are not discussed here as they are fairly specialised and it is recommended that an expert in ADR be consulted before any of the mechanisms, set out above are considered.

When deciding on what dispute resolution process is best, the following are important considerations:

1. The degree of control by the parties.

2. The cost implications and the time span in which the dispute needs to be settled.

3. The privacy and confidentiality which the parties want.

4. The presence of a third party.

5. The type of decision i.e. whether it is binding, advisory etc that is wished for.

6. The degree of choice of influence exercised by the parties and the outcome of the dispute.

7. The degree of difficulty i.e. the need for technical and/or legal expertise.

8. The coercion required or needed to come to a binding decision.