In all of the years that this column has been on the pages of the newspaper, we have discussed alternative dispute resolution in the light of the processes of mediation, conciliation and negotiation amongst similar offerings. We had before now never focused on the processes of arbitration; first because it is so widely known and used and secondly in view of what some regard as its duality

Up until the point of writing this, the debate is still on in some academic circles whether or not arbitration is an alternative dispute resolution process, properly so called. The contention derives from the fact that although there is party autonomy in the choice of professionals and some procedures to conduct an arbitration, party autonomy unfortunately ends at that point. The outcome of the decision of the arbitral panel is as uncertain as litigation, since the decision is taken by a third party – the arbitrator or arbitrators. Indeed, as Sir John Donaldson (Master of the Rolls) has been famously quoted to say in the 1984 case of Northern Regional Health Authority v Derek Crouch Construction Company Ltd, “arbitration is usually no more and no less than litigation in the private sector.”

There are sufficient grounds to support the opinion of the learned judge, given the procedural texture and outcomes of arbitration. Though arbitration may have at inception been intended to be a quick-paced, non-complex alternative to litigation, its contemporary offering would appear to have defeated that objective. Some would however swear that the trajectory of arbitration had actually been altered by the significant interest of litigating lawyers who only in a matter of time had ‘’legalised’’ the process through excessive invitation of the courts of law to interpret basic commercial issues that parties may otherwise have lived with if only they had the right to self-determination offered by mediation.

Irrespective of whatever opinions anyone may hold, arbitration has been embraced by the commercial world and has been in use for as long as its history can be traced. It also has, implicit in its processes, functional provisions that have assisted in the resolution of disputes which ordinarily would have added to court congestion. The involvement of leading legal minds in the push to scrutinize provisions of arbitration through the crucible of the judicial process certainly gives comfort to big time organisations that will not let go, unless they have done everything in the books to protect their bottom line.

All of the foregoing notwithstanding, there still exist differing opinions as to whether or not arbitration is an alternative dispute resolution process. The question is answered in the affirmative in the definition of ADR by Cornell Law School New York. It states that Alternative Dispute Resolution (“ADR”) refers to any method of resolving disputes without litigation. ADR regroups all processes and techniques of conflict resolution that occur outside of any governmental authority. The most famous ADR methods are the following: mediation, arbitration, conciliation, negotiation, and transaction…

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The school further states that “All ADR methods have common characteristics – i.e., enabling the parties to find admissible solutions to their conflicts outside of traditional legal / court proceedings, but are governed by different rules. For instance, in negotiation there is no third party who intervenes to help the parties reach an agreement, unlike in mediation and conciliation, where the purpose of the third party is to promote an amicable agreement between the parties. In arbitration, the third party (an arbitrator or several arbitrators) will play an important role as it will render an arbitration award that will be binding on the parties. In comparison, in conciliation and mediation, the third party does not impose any binding decision.”

From the foregoing, note should be taken of the fact that arbitration is an alternative dispute resolution process because it is squarely in the private sector and outside of any governmental authority. It only differs from other platforms of ADR by that single fact of a third-party decision maker. This peculiarity has also made arbitration a victim of ceaseless court intervention as lawyers find a technical basis to challenge the decision of arbitrators from time to time. Thus, what stands arbitration out in the comity of ADR practices has also become its albatross.

There is no doubt that with the evolution of more and more ADR platforms, the leaders of thought in arbitration are devising ingenious ways to return the practice to its pride of place through the creative combination of arbitration procedures with other formats. These hybrid procedures are reawakening the promise of a seamless dispute resolution process in the commercial world.

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