Originally from Dispute Resolution Journal

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The function of law may be described as twofold: first, to regulate the affairs of persons (persons include corporations, societies, individuals, and government); second, to establish within the community a level of moral conduct. The success of law may to a greater degree be based on the acceptance by the community of these regulations and the level of conduct maintained in order to resolve disputes.

To some degree, there has been a shift within community expectations with respect to the method by which conflicts are resolved. Parties seem to have a greater desire to see their disputes resolved rather than have their day in court. This concept is not new. One form of alternative dispute resolution, namely arbitration, has been around for centuries. In fact, recourse to the arbitration process has been common practice in England since the middle ages and was codified in 1698.1 Arbitration has been defined in Halsbury as:

The reference of dispute or difference between not less than two parties for determination, after hearing both sides in a judicial manner, by a person or persons other than a court of competent jurisdiction.2

ADR stands for alternative dispute resolution—meaning an alternative to the public court system. I prefer my colleague John Sanderson Q.C.’s interpretation, namely “appropriate dispute resolution,” thereby leaving within the arsenal of dispute resolution systems the use of courts for those cases which may require a principle to be established, public vindication, or the infringement of a legal right.

Some years ago a Canadian publication, The Lawyers Weekly, set out the pros and cons of various dispute resolution methods. I reproduce this reference with certain modifications in Fig. 1 (on page 52).