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Introduction

Jonathan Lux

Lux Mediation

Monday 09 September 2019


History

Mediation is the most popular of a range of dispute resolution methods covered by the acronym ‘ADR’: alternative dispute resolution.

The terminology here can be somewhat confused. Some say that ADR stands for ‘alternative dispute resolution’ (ie, an alternative to traditional litigation and arbitration); others say it stands for ‘appropriate dispute resolution’ (in which case the term becomes almost meaningless, as it could embrace all known forms of dispute resolution); and some lawyers say it stands for ‘alarming drop in revenue!’ (because its effectiveness is such as to resolve in a matter of weeks disputes that might otherwise take years to resolve through the judicial system).

The definition I prefer places litigation and arbitration on one side of the fence and ADR on the other. In other words, the distinguishing feature is that the ADR neutral’s role is not to ‘decide’ the dispute but to facilitate a settlement.

Mediation, while it may have been engaged in privately, was more or less unknown in the common law world until about 35 years ago. The civil law codes, on the other hand, contain provisions dealing with conciliation; in practice, however, these provisions were only rarely brought into play.

Modern ADR had its birthplace in the United States, and some say that it is hardly surprising, given that in the US the twin evils of cost and delay in the litigation process are at their most acute.

Although there is a range of ADR processes, mediation has become by far the most popular.

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