Alternative Dispute Resolution

What is ADR?
ADR is the name used for different ways of solving a dispute. For example, mediation, arbitration, adjudication and ombudsmen are all types of ADR. In many circumstances they are alternatives to going to court – which is why they are sometimes known as ‘alternative dispute resolution’. Alternative dispute resolution (ADR) consists of a variety of approaches to early intervention and dispute resolution. Many of these approaches include the use of a neutral individual such as a mediator who can assist disputing parties in resolving their disagreements.

Advantages for using ADR

It is cheaper
Mediators will commonly claim that mediation is cheaper than going to court. Mediation can be much cheaper than taking legal action as it does not require filing fees in order for a dispute to be lodged like in court where filing fees is a must.

Quicker
Some forms of ADR can be quicker than going to court. If you are involved in a small claim in court, for example, your case can go to mediation sooner than a hearing can be arranged. ADR processes do not follow strict rules of civil procedure and this helps the parties to settle disputes urgently.

Not adversarial
Going to court can risk making a bad situation worse. That’s because the legal system is adversarial – it puts one side against the other, and at the end there is a winner and a loser.
Using ADR like in mediation, where you talk to each other to find a solution you can both live with, can help preserve an ongoing relationship.

Getting what you want
There is a much wider range of outcomes with ADR than with courts. Mediation and Negotiation may well be more appropriate than court if what you want is an apology, an explanation, or a change in policy or practice by an organisation.

Flexibility
ADR processes are usually more flexible than the court process. Mediators will usually bring both parties together for a face-to-face discussion. However in negotiation, parties will try to negotiate a deal through a series of phone calls. In ADR like negotiation it is by parties’ choice of preference in sorting out a problem either by phone, through letters or emails, or face to face. Whereas court system follows strict rules of procedure that are brought in force by law and cannot be avoided save for circumstances where they have been amended.

Longer lasting
When it works, mediation and negotiation can produce a solution that satisfies both sides. Mediators encourage people in dispute to have creative discussions about a range of options. Rather than just aiming for an acceptable compromise, they will try to end up with an agreement which reflects the best possible outcome for all involved. This can have an effect on what happens afterwards. Research indicates that agreements reached through mediation are more likely to work out in practice, and to last longer, than those imposed by a court.
Confidentiality
Since ADR is a private settlement mechanism and is not done in open the dispute at hand remains private and is not published in public domains like in court system that can be open. This has helped in the protection of the image of investors in commercial matters in Rwanda.

Disadvantages for using ADR
There are some situations when ADR may not be appropriate, and may even be risky for one of the parties. It is a good idea to get some independent legal advice about this. It is important for solicitors and legal advisers to use their professional judgement in each case, but these are some of the factors you should think about:
Power differences
There may be an imbalance of power between the parties, which could make face-to-face ADR unfair. For example, mediation between an individual and a large organisation such as a local authority or company where the size and resources of the organisation could put the individual at a disadvantage, this doesn’t always mean that mediation is inappropriate, but it’s something to consider.
Urgency
There may be an urgent need (for example if you are threatened with being evicted or losing your home) which requires an immediate legal remedy. ADR does not give interim remedies like injunctions and hence forth party can lose his property in continued violation of his rights even during settlement of dispute in ADR and requires court intervention to stop such violation.
Reluctant opponent
ADR requires both parties to be willing to give it a try, so if the other side is not willing to participate, you might need to go to court instead. The unwillingness to participate delays the process of effective settlement of disputes, because ADR does not have compelling measures to bring by force parties who are not compliant.
No precedent
Agreements reached in mediation do not act as precedents in future cases. They are usually private and confidential.
If you need to establish a legal point that other people can rely on, you may need to go to court.

No ruling on legal rights and entitlements
You cannot get a ruling on your legal rights, including discrimination and human rights, in ADR processes. You can still resolve a dispute about these issues, but you won’t get a decision about whether or not the law has been broken.

Lower compensation amounts
Although arbitrators can make compensation awards, they are often lower than is likely to be achieved in court. Research shows that in arbitration of small claims cases, settlement amounts tend to be lower than amounts claimed. If you need a significant sum of money in compensation, then you might get a higher award through the court.
Binding decisions
Arbitration, and often adjudication, are processes that result in legally binding decisions. This means that you cannot reject the decision if you don’t like it, and you can’t take the claim to court instead. Arbitration in Rwanda can only be appealed on procedural grounds but rather not the substantive elements of the settlement.
Quality control
There are no consistent quality standards or regulation for ADR providers, so it can be hard to know how to choose a good service.
Costly
Arbitration in Rwanda like in international commercial matters where the seat can be in any country of parties’ choice is costly in terms of buying air tickets for participants, reservation of hotels and remuneration of arbitrators. Article 65 provides for costs in Arbitration in Rwanda.
Bibliography
Laws
LAW N° 005/2008 OF 14/02/2008 on Arbitration and Conciliation IN COMMERCIAL MATTERS
Reports
Alternative Dispute Resolution Leaflet, written by  Margaret Doyle published by Advice Services Alliance, June 2012 (http://asauk.org.uk/wp-content/uploads/2013/08/Why-use-ADR.pdf)

Alternate Dispute Resolution Handbook (http://www.opm.gov/policy-data-oversight/employee-relations/employee-rights-appeals/alternative-dispute-resolution/handbook.pdf)