Types of ADR systems
Main types of ADR systems occur in the European Union:
Mediation and conciliation
By means of mediation or conciliation the parties try to reach an amicable agreement with the participation of third party.
The mediator’s task is to make easier for the parties to find a solution satisfactory for them. The mediator himself doesn’t impose any solution but takes care that the parties reach compromise independently. In conciliation system the third party, after listening to the arguments of both parties, tries to propose the best solution for them. This proposal doesn’t have to be binding for the parties. In mediation and conciliation proceeding the parties are not limited by the provisions of substantive law and rules of procedure. The dispute settlement, therefore, doesn’t have to be based on a specific legal norm, but may refer to the rules of honesty, legitimacy, loyalty or good morals. Most often the amicable agreement concluded in such a proceeding additionally requires granting an enforcement clause by court.
Arbitration is a method of out-of-court disputes settlement mostly close to court procedures. The most important legal instrument regulating arbitration is Convention of the United Nations on Identification and Acceptance of Foreign Arbitration Decisions as of June 10th, 1958.
Arbitration is a type of procedure within which the parties select one or more neutral individuals to whom they present the case in order to obtain a final legally binding settlement. It may be of single or institutionalised nature. In temporary arbitration each party of dispute selects its own arbitrator (or arbitrators) and then these appoint a super arbitrator. Selected in such a way composition settles a dispute on the basis of previously agreed rules. Institutional arbitration most often functions on the basis of professional organisation dealing with arbitration. In some models of arbitration there may be formed a necessity of conducting additional enforcement proceeding before a civilian court.
Consumer organisations, associations of entrepreneurs or commercial institutions may jointly or independently organise complaint commissions basing on provisions of common law or solutions based on soft-law. Complaint commissions are of collective nature with equal representation of consumers and entrepreneurs community.
The commission’s settlements are mostly not binding for parties, unless in some systems they bind the entrepreneur.
Some complaint commissions may conduct consumer cases even without the entrepreneur’s consent. Such a decision, although not binding one, is significant for his reputation.
Ombudsman is a single-person institution appointed to settle disputes between entrepreneurs and consumers. For this position there is appointed a person with high subject-matter qualifications, enjoying a high prestige and spotless opinion. Most often this ADR type is formed from initiative of entrepreneurs of certain branch and constitutes one of the instruments of soft-law. Although ombudsman is appointed by entrepreneurs, usually in his settlements, he is an independent authority. Ombudsman is usually competent in the indicated scope of cases and works out decisions on the basis of legal provisions, rule of equality or guidelines accepted in the branch. His decisions are usually binding for entrepreneur or are not binding for any party.