The balance of power in Alternative Dispute Resolution (ADR) refers to the distribution of power and control between the parties involved in the dispute. In traditional litigation, the power is often heavily tilted towards the legal system and the parties have little control over the outcome. However, in ADR, the parties have more control over the process and the outcome, which can lead to a more equitable distribution of power.
One of the main features of ADR is that it allows the parties to participate in the process and make decisions about how to resolve their dispute. For example, in mediation, the parties are able to discuss their concerns and interests and come up with a mutually acceptable solution. This gives the parties a sense of empowerment and control over the outcome, which can lead to a more satisfactory resolution.
Another aspect of the balance of power in ADR is the role of the neutral third party. In most forms of ADR, a neutral third party, such as a mediator or arbitrator, is present to facilitate communication and help the parties reach a resolution. This neutral third party does not have any vested interest in the outcome and is there to facilitate the process rather than impose a solution. This helps to balance the power between the parties and ensures that the process is fair and impartial.
Additionally, ADR also allows parties to choose the dispute resolution process that best suits their needs and preferences. They may choose between mediation, conciliation, arbitration, and many other forms of ADR. This allows the parties to select the process that they feel most comfortable with and that they feel will best address their concerns and interests.
However, the balance of power in ADR can be affected by a number of factors. For example, the level of power imbalance between the parties can affect the outcome of the dispute. If one party has significantly more power than the other, it can be difficult for the weaker party to effectively participate in the process and negotiate a fair resolution. This is why most ADR providers will conduct an assessment to ensure that the parties are relatively balanced before proceeding with the ADR process.
Another factor that can affect the balance of power in ADR is the skill and experience of the neutral third party. If the neutral third party does not have the necessary skills and experience to effectively facilitate the process and manage the parties, the balance of power may be disrupted, and the outcome may not be satisfactory for all parties.
Finally, cultural and societal factors can also impact the balance of power in ADR. In some cultures, certain forms of ADR may be more accepted and effective, while in others they may be viewed with suspicion or skepticism. Additionally, societal factors such as gender, race, or class can also affect the balance of power in ADR, with marginalized groups often having less power and influence in the process.
In conclusion, the balance of power in ADR refers to the distribution of power and control between the parties involved in the dispute. ADR allows the parties to participate in the process and make decisions about how to resolve their dispute, and to choose the dispute resolution process that best suits their needs. The balance of power can be affected by a number of factors, including the level of power imbalance between the parties, the skill and experience of the neutral third party and cultural and societal factors. Therefore, it is important to be aware of these factors and to take appropriate measures to ensure that the balance of power is maintained in the ADR process.
Lawyer/Arbitrator/Mediator/Certified Islamic Arbitrator and Expert
Honorary Fellow IICRA –UAE