United Arab Emirates: Comparative Analysis Of ADR Methods With Focus On Their Advantages And Disadvantages

Last Updated: 5 February 2019
Article by STA Law Firm
Most Read Contributor in United Arab Emirates, February 2019

"The courts of this country should not be the places where the resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried." -Sandra Day O'Connor

Courts are an essential institution without which society would end up in chaos. Their importance cannot be emphasized enough, though many of the disputes which arise between individuals or organizations are such that, they are solvable without the interference of the judicial authorities. Such conflicts, which do not require the juridical system, instead, need a specific set of formal regulations to achieve their end. Dispute resolution resolves the conflicts that occur amongst individuals or organization. In turn, the judicial burden is reduced.

In this article, we will analyze the types of ADR methods while focusing on their advantages, disadvantages, and differences.

Alternative Dispute Resolution often referred to as ADR, is a set of methods or techniques that allow parties to a dispute to reach an amicable settlement. It consists of ways in which parties can settle their differences without recourse to litigation. Alternative Dispute Resolution (ADR) methods are now widely accepted and have been gaining recognition at the national as well as international level. Modes of ADR have been in existence from a long time and were used long before the sophistication of civilization.

ADR involves continuous efforts made by a third party, who is neutral and assists the disputing parties to come to a settlement. The qualification and the skill of the neutral third party vary, concerning the modes of dispute resolution.  

ADR is a vast topic and includes a broad range of activities. Legal luminaries Nancy Atlas, Stephen Huber, and Wendy Trachte in their 'Alternative Dispute Resolution: The Litigator's Handbook,' has defined ADR as being:

"Anything except a bench or jury trial under the auspices of some judicial body."

In simple words, ADR, as the name suggests, is nothing but an alternative method to litigation to resolve disputes that exist between individuals or organizations.

Nowadays, due to the vast resources required for litigation, people prefer alternative dispute resolution methods to settle matters which do not require the intervention of judicial authority.

Methods of Alternative Dispute Resolution System

The techniques or modes of ADR, though widely accepted all over the world, may vary from region to region. This fluctuation depends on the legal framework of a country. The following are the methods of settlement that are widely accepted:

  • Arbitration
  • Mediation
  • Conciliation
  • Negotiation

Arbitration

Arbitration is a mode of ADR wherein the dispute between the parties goes through a process to achieve an amicable resolution by an impartial third party known as an 'arbitrator,' without recourse to litigation.  In the case of arbitration, the arbitrator, after reviewing the dispute between the parties comes to a settlement. Such a decision taken by an arbitrator shall be binding on both parties. Unlike other methods of dispute resolution, once the parties have submitted a matter to arbitration, neither can withdraw from the procedure.

Arbitration can either be voluntary or mandatory. In the case of compulsory arbitration, the parties to the dispute enter into Arbitration either under a statute, an order of the court, or through a specific clause included in the contractual agreement between the parties. Whereas on the other hand, in the case of voluntary arbitration, it is up to the discretion of parties to enter into arbitration. The decision that results from the proceeding is known as an 'arbitral award.'

Advantages of arbitration:

  • Flexibility- Arbitration proceedings are flexible and more economically feasible compared to litigation.
  • Time-Consuming- Arbitration proceedings occur at an expeditious rate as compared to Litigation; therefore, it saves time for both parties.
  • Confidentiality- The disputes which are subject to arbitration are treated with privacy, and are not released to the public.
  • Arbitrator- The parties have the liberty to choose an arbitrator to handle their dispute.
  • Enforceability- Arbitration awards are generally easier to enforce as compared to court verdicts.

Disadvantages of arbitration:

  • If arbitration is mandatory as per the contract between the parties, then their right to approach the court is waived.
  • There is a very limited avenue for appeals.
  • Arbitration does not provide for the grant of interlocutory applications.
  • Arbitration awards are not directly enforceable; they are executable subject to judicial sanction.

Mediation

Mediation is a mode of dispute resolution, where an amicable decision arises with the help of a third party known as a 'mediator,' without recourse to the court of law. It is a voluntary process, and unlike arbitration, it is more flexible; therefore, the parties to the dispute are under no obligation to agree to the settlement. Thus, an agreement taken via mediation shall be binding upon the parties, only as long as they agree to it. There may be instances where parties are advised to adhere to Mediation, however, under such circumstances, the result is up to the parties. Therefore, Mediation is a process where the parties are in total control over their final settlement. Here, the mediator only acts as a facilitator and does not interfere in the decision of the dispute. Therefore, it is a win-win pact.

Advantages of mediation:

  • Parties have complete control over the settlement.
  • Less stress as compared to litigation and arbitration.
  • The relationship between the parties isn't overly damaged.
  • Mediation proceedings are confidential.
  • The process resolves the dispute quickly.

Disadvantages of mediation:

  • Since the decision is at the discretion of the parties, there is the possibility that a settlement between the parties may not arise.
  • It lacks the support of any judicial authority in its conduct.
  • The absence of formality- Mediation proceedings are lacking in any procedural formality since they are not based on any legal principle.
  • The truth of an issue may not be revealed.

Conciliation

Conciliation is a method of dispute resolution wherein the parties to a dispute come to a settlement with the help of a conciliator. The conciliator meets with the parties both together and separately to enter into an amicable agreement. Here, the final decision may be taken by reducing tensions, improving communications, and adopting other methods. It is a flexible process, therefore allowing the parties to define the content and purpose of the proceeding. It is risk-free and is not binding upon the parties unless they sign it.

Advantages of conciliation:

  • Flexibility: Since the conciliation process is informal, it is flexible.
  • The conciliator is often an expert in the disputed field.
  • Conciliation proceedings, like any other form of ADR, is economical as compared to litigation.
  • The parties to the dispute have the liberty to approach the court of law, if unsatisfied with the proceeding.

Disadvantages of conciliation:

  • The process is not binding upon the parties to the dispute.
  • There is no avenue for appeal.
  • The parties may not achieve a settlement to their conflict.

Negotiation

Negotiation is a method of dispute resolution whereby a dispute between two individuals or groups is settled amicably by an impartial third person called as a negotiator, using different techniques. The negotiator, in this form of resolution, uses various communication methods to bring the parties of the dispute to a settlement. The primary aim of this type of dispute resolution is to reach an agreement that is fair and acceptable by the parties. The parties engage in the dispute with each other until they reach a desirable outcome for all involved.

Advantages of Negotiation:

  • Flexibility: since negotiation is an informal process, it is relatively flexible.
  • Quick resolutions as compared to litigation.
  • It facilitates in maintaining a healthy relationship between the disputing parties.
  • Takes place in a private environment

Disadvantages of Negotiation:

  • The parties to the dispute may not come to a settlement.
  • Lack of legal protection of the parties to the conflict.
  • Imbalance of power between the parties is possible in negotiation.

Difference between different types of Alternative Dispute Resolution (ADR) systems:

ADR Methods-

Arbitration

Mediation

Conciliation

Negotiation

Neutral Third Party-

Adjudicator

Facilitator

Facilitator, Evaluator

Facilitator

Nature of the Proceeding-

Legally Binding

Not legally binding

Not legally binding

Not legally binding

Level of Formality-

Formal

Informal

Informal

Informal

Level of Confidentiality-

Confidentiality as

determined by law

Confidentiality

based on trust

Confidentiality as

determined by law

Confidentiality

based on trust

Conclusion

The various modes of Alternative Dispute Resolution (ADR) systems as discussed above, hold many similarities as well as differences. These methods provide diverse techniques, which help a party to a dispute to amicably settle their dispute. These modes of dispute resolution are now widely accepted and applied in numerous areas of dispute.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Country
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions