WHAT IS ADR (ALTERNATIVE DISPUTE RESOLUTION)?
ADR (Alternative Dispute Resolution) are the “alternative means of conflict resolution” outside the State Power. Also called “alternative dispute resolution means” - MASCs or “extrajudicial dispute resolution means” - MESCs. There are indoctrinates who criticize the word "alternatives" saying that they should be called more "adequate" means of conflict resolution.
In summary, ADR means that for each type of conflict there is a more adequate resolution solution, which does not necessarily have to go through the judiciary. There may even be a number of simpler and more practical forms of resolution before reaching the judiciary, what is called a multi-port conflict resolution system. Multiport system is nothing more than forwarding and choosing for each type of conflict the most appropriate means for its resolution.
Operators of the law must observe the type of conflict, the best strategy according to the complexity of the case, costs, time, economic analysis of the law, assess whether a consensual or adversarial method would be more appropriate for the resolution, and among which is the which best fits economically to give effect to the interests of the parties.
There are several methods of resolution, such as: negotiation, mediation conciliation, arbitration, dispute board, among others.
More and more companies will value the conflict resolution designer who will look at the company, map which are their biggest conflict bottlenecks and design together with the legal department, in a sustainable and economical way, the best resolution system according to the interests from the company.
WHAT ARE THE ADR MODALITIES?
We will try here to bring a very brief synthesis of ADR for better understanding, and we should note that there are countless others not listed. Let's go to some of them:
1. Negotiation: Prepared and structured communication aimed at persuasion directly between the parties. “Negotiation is an essential daily activity”, as we negotiate all the time in our social relationships. It can be done by the party itself or through the use of a facilitator, negotiator, who will help the parties to focus on interests and not on positions, separate people from problems, check the best alternative to a negotiated agreement, check the possible agreement area , among other techniques.
2. Mediation: Self-composing method of the parties, where they are the protagonists of the solution, assisted by a third mediator, facilitator of communication between them, independent and impartial, who does not judge, does not give advice, but uses techniques so that the parties are stimulated to come up with creative solutions for them to resolve the conflict. Based on the principles of impartiality of the mediator; equality between the parties (all treated equally), orality, informality (but with organization of work), autonomy of will, search for consensus, confidentiality and good faith.
Non-imposing and ideal method for longer lasting relationships and breaches of trust, such as disputes with suppliers, relationships in the scope of insurance, health, education, condominium, family, disputes between societies, disputes where you want to keep business partners, among other examples. It can deal with available and unavailable rights that admit a transaction and is regulated in Brazil by Law 13140/95 and New Code of Civil Procedure , especially in articles 165 to 172 of the NCPC .
3. Conciliation: Self-composing method of the parties, ideal for temporary situations and of not very significant value. The third facilitator, conciliator, can suggest creative solutions for the parties and assist in the negotiation. It is a non-imposing method. It can address available and unavailable rights that support a transaction. Regulated by Law 13140/95 and New Civil Procedure Code , especially in articles 165 to 172 of the NCPC .
4. Arbitration: adversarial conflict resolution method, alternative to the judiciary, where there is delegation of jurisdiction, as the parties, based on their will, transfer jurisdiction to third parties, impartial and independent arbitrators, under the terms of Law 9307/96 , which will judge the issue. Arbitration can only address available rights. The solution is mandatory, the arbitrator's sentence is equivalent to the judicial sentence handed down in the state court, but it is definitive, as there is no appeal. That is why it is said that it is important to choose arbitrators very well and that they must be experts in the material law to be assessed. Since the arbitrators are experts in the matter at trial and chosen by the parties, the arbitration is much faster and more specialized, with reduced time and costs.
WHAT ARE THE BENEFITS OF A GOOD USE OF ADR?
In short, they are as follows:
• Time and cost savings in resolving the conflict;
• Confidentiality;
• Exercise of the autonomy of the will, with greater active and direct participation of those involved in the resolution.
• Flexibility of the solution procedure;
• Greater understanding of the parties about what generated the conflict;
• Positive perspective and vision of the future;
• In consensual methods, it can generate more creative, lasting and win-win results, serving the greatest interests of the parties.
• Power to reestablish relationships and add value;
• Greater party satisfaction and effectiveness in resolving conflicts.
HOW AND WHEN TO USE ADR?
The most suitable methods of conflict resolution can be used at any time, they basically depend on the will of the parties.
AND WHAT IS ODR?
ODR (Online Dispute Resolution) are the same appropriate means of conflict resolution mentioned above only that are transferred to the digital medium on platforms. Instead of the parties being in a physical place to resolve the conflict, they meet in virtual rooms.
However, according to Daniel Arbix: “ODR is the resolution of disputes in which information and communication technologies are not limited to replacing traditional communication channels, but act as vectors to provide parties with environments and procedures absent in conventional mechanisms to resolve conflicts” , and that “ODRs are 'a new door' for resolving conflicts that may not be resolved by traditional dispute resolution mechanisms”.
WHAT ARE THE MAIN CHALLENGES OF ODR?
The major challenge for ODRs in relation to ADRs is that they need greater technical training from facilitators, mediators or arbitrators.
This is because in addition to the technical capacity that is required of them for the face-to-face environment, they also need technological capacity, in addition to greater sensitivity and attention to deal with this new technological element of the conflict resolution system.
There is also a greater duty of information and transparency not only regarding the conflict resolution system used, but also the verification of the technical capacity of the parties to use technological tools, for a good exercise of their autonomy, isonomy, as well as a work of balance differences in power.
Without trying to exhaust all the challenges, these are certainly the main ones.
WHAT ARE ODR'S BENEFITS IN RELATION TO ADR?
In summary, we have:
• Greater accessibility;
• Reduces even more time and costs than traditional ADR mechanisms;
• Bring greater organization, optimization and efficiency to the procedure;
• Greater reception and preparation of the parties; because they are at home or work, a more welcoming environment, but they need preparation for the session, which generates even greater participation in the resolution system.
• Allows conflict resolution where ADR is not possible or has no reach.
Finally, how and when to use ODR?
The appropriate online methods of conflict resolution can be used at any time and basically depend on the willingness of the parties and their technical ability to use them.
In Brazil, the use of cell phones and the internet is already widespread, and the new generation will be very familiar with the digital environment, and the tendency is that many ADRs migrate to ODR, but it is certain that one will never exclude the other. There will always be conflicts that will be better resolved in person.
CONCLUSION
Prof. Diogo de Figueiredo Moreira Neto that: “Consensuality has become decisive for contemporary democracies, as they contribute to improving governance (efficiency); provide more brakes against abuse (legality); guarantee attention to all interests (justice); they provide a wiser and more prudent decision (legitimacy); develop people's responsibility (civism); and make state commands more acceptable and easily obeyed (order) ”.
Thus, more than more advantageous methods for the parties with reduced time and costs, the ADR and ODR, are a true exercise of citizenship and can assist in the optimization of the judiciary, its greater efficiency, besides generating greater effectiveness of the conclusion decisions conflict resolution, be it agreements or sentences, as the parties participate closely in the decisions.
However, it is necessary to pay attention to the proper use of such adequate methods of conflict resolution, so that there is an effective satisfaction of the parties with the results.
An assessment of interest, economic analysis of the law, cost, time of each method must be made, in order to choose the most appropriate one and a conflict resolution designer can be of great value.
It is necessary to choose good specialists, in the case of arbitration, arbitrators specialized in the material law of the cause (and not necessarily in arbitration) and mediators with the appropriate technical and quality skills. Choices of cameras or private platforms with quality, organization and costs compatible with the interests of the parties.
Also important is the choice of lawyers with technical expertise for each conflict resolution method, who take care of the good writing of contractual clauses providing for such methods, optimize the work during the realization of these methods and effectively prepare the parties for participation in the sessions focusing on your real interests.
With this care, certainly those who try ADR and ODR will have good experiences, with reduced time, costs and effective results, generating consequences for the optimization of the judiciary, in addition to economic and social improvements.
Bibliography:
ARBIX, Daniel do Amaral, Online Dispute Resolution, Intelecto Editora.
BAPTISTA, Luiz Olavo, Commercial and International Arbitration, Lex Magister, 2011.
CRESPO, Mariana Hernandez, Systemic perspective of alternative methods of conflict resolution in Latin America: improving the shadow of the law through citizen participation. Multiport Court. Investing in social capital to maximize the conflict resolution system in Brazil, FGV Editora, 2012.
DIAS, Eduardo Machado Dias and others, Dispute System Design and conflict management in companies, Source: Jota July 26, 2017 - 7:05 am in http://www.conima.org.br/arquivos/16219 , accessed 12 / 12/2017.
GABBAY, Daniela and others, Alternative means of conflict resolution, Editora FGV, 2013.
OSTIA, Paulo Henrique Raiol. Conflict resolution system design: indemnity systems in homogeneous individual interests. 2014. 231f. Dissertation (Master in Procedural Law) - Faculty of Law, University of São Paulo, São Paulo, p. 92;
MOREIRA NETO, Diogo de Figueiredo, Changes in Administrative Law, 3rd. Edition, Rio de Janeiro, renew, 2007.
MUNIZ, Joaquim de Paiva, Basic Course in Arbitral Law, Juruá Editora.
ROGERS, Nancy H .; BORDONE, Robert C .; SANDER, Frank EA; McEWEN, Craig A. Designing Systems and Processes for Managing Disputes. New York: Wolters Kluwer Law & Business, 2013;
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