Alternative Dispute Resolution ( ADR ) Principles : From Negotiation to Mediation

Alternative Dispute Resolution (ADR) is now widely used around the world to deal with disputes and conflicts as well as agreement-making and planning. Forms of ADR initially developed in many countries often supported thirdparty decision-making and therefore tended to be more advisory or decisional and less facilitative (for example, arbitral forms of ADR were introduced in many jurisdictions before mediation). However, in recent years, there has been an increasing emphasis on the more facilitative forms of ADR that are underpinned by interest-based or integrative forms of negotiation and are founded on principles of self-determination. The extent to which these more facilitative forms of ADR, such as mediation, are adopted and adapted varies from country to country and can be a reflection of local cultural and societal norms, dispute resolution and negotiation preferences and the differing approaches to the location and policies that apply to ADR. This article considers the reasons why facilitative forms of ADR have become so popular in many jurisdictions, with a particular emphasis on Australia, and the nature of the ADR processes that have emerged. In this context, ADR has mostly been defined as an ‘umbrella term for processes, other than judicial determination, in which an impartial person assists those in a dispute to resolve the issues between them’. It is noted that