There are various ways in which the categorization for the differentiation of the type of ADR can be undertaken. Some of them are as follows.
The types under ADR can be differentiated on the basis of the presence of guidelines. Guidelines mean the set of rules of procedure authorized by any competent authority to be followed while undertaking the process. Presence of different guidelines like the UNCITRAL Model Law on International Commercial Arbitration, ICC rules on Arbitration or even statutory laws such as Arbitration and Conciliation Act 1996 differentiates Arbitration from the rest of the methods of ADR.
Mediation does not have any formulated guidelines but has set standards of ethics which one is required to follow. Negotiation is completely dependent on the clients. Lok Adalats gives great freedom to the presiding judges to decide on the method and the process of Lok Adalat. Few clauses regarding the establishment of Lok Adalats are enshrined in the Legal Services Authority Act,1987.
A major stick for differentiating between the different types of ADR is finding out whether the type is a law-driven process or a client-driven process. Arbitration is a law-driven process, where the procedure is mentioned in several statutes and guidelines in which mediation and negotiation are a client-driven process.
There is a process to be followed in the process of arbitration from the selection of the arbitrator to the creation of the arbitral award; everything is according to a set of rules and procedures.
On the contrary, in mediation, the mediator is the moderator of the procedure. While in negotiation the parties are given prime importance, the parties decide the venue and the time. The process is based on their preferences. Client counselling, on the other hand, depends entirely upon the counsels.
The moderator of the process of ADR has to be a virtuoso in legal studies and practice. The coordinator is sometimes called the arbitrator, sometimes the mediator and yet sometimes a judge according to a type of ADR. The strength of the team of moderators may also vary from time to time. In arbitration, the strength of arbitrator(s) is always odd in number for the purpose of maintaining neutrality.
The arbitrator follows the law and presents the arbitration award, which is equivalent to an order by the civil court. On the other hand, the role of the mediator is to facilitate the negotiation between the parties thus helping them reach a settlement. Unlike the arbitrator, the mediator cannot interfere and suggest ways to settle the disputes. Mediators act as catalysts to speed up the process of discussion between the parties.
In conciliation, the conciliator can suggest and help in the resolution of disputes. In med-arb, the moderator acts as a mediator initially and later as an arbitrator. Additionally, the qualifications of the coordinator are of prime importance in the process. The qualification decides the kind of cases the coordinator would behandling. Several organizations like the PCA, ICC, etc recruit such persons as chartered arbitrators.
The position of the parties in a dispute is often the thing that differentiates the different types of Alternative Dispute Resolution methods. In some types, the parties are given more importance while in the other type the coordinator is vested with all the powers.
In arbitration, for example, the arbitrator decides over the merits of the case and hence the arbitrator is given greater power over the parties. Whereas in a negotiation process the parties are vested with all the powers. They decide the venue, time, process and finally agree on their own.
In a mediation process, the position of the mediator is subordinate to that of the parties. The mediators are often relegated to silent observers in mediation. The interest of the parties is given prime importance in all the types of ADR. In Lok–Adalat the parties do not get to decide the venue of the place.
The ambit of cases covered by the different types of ADR is also sometimes an area of differentiation. For example, mediation ranges from marital to work-place related issues. Arbitration mainly deals with commercial and business issues. Negotiation ranges for varied subjects and has a varied scope. Local Lok-Adalats deal mostly in cases of telecom and finance where the corporations try to settle their disputes in one-go. Panchayats have wide jurisdictions from civil to criminal cases.
Despite all the major differences, all the types of ADR are party-specific and were introduced to establish a win-win position between the parties in the shortest amount of time. Thus theoretically there might be differences but practically the objective and the intent of all the types are one and the same.
