APPENDIX A: CHARACTERISTICS OF ADR AS INITIALLY CONCEIVED Reproduced from ALRI CM 12.6, pp. 11-12 With the multi-option vision of the civil justice system gaining favour today, the characteristics of the litigation (court) and non-litigation (non-court) dispute resolution processes, identified in the chart below for discussion purposes, no longer operate in sharp contrast to each other. The second column, headed “non-li tigation (non-court) process” describes interest-based processes such a negotiation, mediation or collaborative law. In contrast, as noted in chapter 4, arbitration is essentially a form of adjudication, although “non-bin ding” arbitration is an option. Arbitration therefore straddles both columns. LITIGATION (COURT) PROCESS NON-LITIGATION (NON-COURT) PROCESS Process is adversarial (win-lose) Process is non-adversarial (cooperative, collaborative) (win-win) Process is court-controlled Process is party-controlled System is publicly provided Assistance is privately engaged Process fairly structured (although flexible within institutionally-fixed limits) Wide open choice of process from limitless possibilities, able to accommodate wishes of parties One party sues, the other must respond or stand in default Voluntarily undertaken by both parties Time limits imposed Pace up to the parties Result often uncertain, not readily predictable Result (usually) rests with parties Progresses on a more or less lock-step continuum More an integration than a continuum – allows for seamless movement among ADR processes on a single occasion, or simultaneous application of various ADR processes with respect to particular elements of the dispute Issues are framed in legal terms, using legal concepts; the discussion is “rights-based” Issues reflect the interests of the parties; the discussion is “interest-based” Remedies are limited to legal remedies Remedies respond creatively to parties interests The record and proceedings (generally) are open to members of the public Proceedings (generally) are conducted in private; shared information is confidential