👨‍⚕️ Triage in ADR

by Pierfrancesco C. Fasano

Matching Disputes to Their Optimal Resolution Path

Introduction

The term ‘triage’, borrowed from medical practice, has found vital application in the field of dispute resolution. Whilst in medicine it denotes the process of prioritising patients according to the severity of their condition, in Alternative Dispute Resolution (ADR) it represents the critical first step of assessing a dispute and directing parties towards the most appropriate resolution mechanism. This preliminary assessment is not merely administrative housekeeping; it is a sophisticated evaluation that can determine the success or failure of the entire dispute resolution process.

The importance of effective triage cannot be overstated. When properly conducted, it saves time, reduces costs, and ensures that parties are not subjected to inappropriate or unnecessarily complex procedures. At its heart, triage in ADR embodies the principle that not all disputes are alike, and consequently, they ought not to be resolved through identical means.

The Concept of Triage in Dispute Resolution

In the ADR context, triage involves a careful examination of the dispute’s characteristics, the parties’ needs and objectives, the nature of their relationship, and the desired outcomes. This assessment considers various factors: the complexity of the issues, the quantum involved, the urgency of resolution, the need for precedent, the importance of preserving ongoing relationships, and the parties’ appetite for risk and control over the outcome.

Much like a medical professional must quickly determine whether a patient requires immediate surgery, intensive care, or outpatient treatment, an ADR professional conducting triage must evaluate whether a dispute calls for the formal structure of arbitration, the facilitative approach of mediation, the direct engagement of negotiation, or perhaps a hybrid process combining elements of several methods.

The skill lies in recognising that each dispute possesses unique characteristics that make it more or less suitable for particular resolution methods. A commercial disagreement involving complex technical issues and parties from different jurisdictions might be ideally suited to arbitration, whilst a neighbourhood boundary dispute might be resolved far more effectively and economically through mediation.

Case Management and Directional Guidance

Effective case management begins with thorough triage. During this initial assessment phase, parties are guided—through a consultative process—towards the ADR method that best aligns with their specific circumstances and objectives. This is not a prescriptive exercise; rather, it is an informed discussion that empowers parties to make educated decisions about their dispute resolution pathway.

The guidance provided during triage considers the full spectrum of ADR options. Mediation offers a confidential, flexible process where a neutral third party facilitates negotiations, allowing parties to maintain control over the outcome whilst potentially preserving their relationship. Arbitration provides a more formal, adjudicative approach, resulting in a binding decision made by a chosen expert or panel. Negotiation, the most direct method, involves parties or their representatives engaging in discussions without third-party intervention. Hybrid processes, such as med-arb (where mediation is attempted first, with unresolved issues proceeding to arbitration), offer the benefits of multiple approaches.

The case management professional’s role during triage is to illuminate these options, explaining their respective advantages and limitations in the context of the specific dispute. This ensures that parties are not simply defaulted into a particular process, but rather actively choose the path that offers them the greatest likelihood of achieving their objectives.

The Benefits of Early Assessment

The advantages of proper triage manifest in multiple dimensions. Temporally, it prevents parties from embarking on lengthy, inappropriate processes that may ultimately prove unsuitable, requiring them to begin again through a different mechanism. Financially, it avoids the substantial costs associated with engaging in the wrong form of dispute resolution—costs that can quickly escalate when the chosen method proves ill-suited to the dispute’s nature.

Beyond time and cost considerations, effective triage prevents parties from becoming mired in procedural complexity that serves no purpose in advancing towards resolution. It ensures that commercial parties are not subjected to overly informal processes when binding decisions are required, whilst equally protecting parties from unnecessarily adversarial procedures when their primary objective is to repair a damaged relationship.

There is also a psychological dimension to consider. Parties entering dispute resolution are often anxious, frustrated, or simply uncertain about what lies ahead. A clear triage process provides reassurance that their matter is being handled thoughtfully and that the chosen path has been selected with their specific needs in mind. This can significantly enhance party engagement and cooperation throughout the subsequent resolution process.

The MFSD Approach: Appropriate Dispute Resolution

At MFSD, the principle of appropriateness has always been foundational. The organisation recognises that the ‘A’ in ADR should properly stand for ‘Appropriate’ rather than merely ‘Alternative’. This seemingly subtle semantic shift reflects a profound philosophical commitment: dispute resolution methods should not be seen as alternatives to litigation, but rather as the primary, appropriate mechanisms for resolving conflicts, with each selected based on its fitness for purpose.

This approach requires MFSD practitioners to engage in careful, individualised assessment of each dispute. Rather than offering a one-size-fits-all solution or defaulting to the most commonly used method, the organisation’s case managers work collaboratively with parties to understand the full context of their disagreement.

What are the substantive issues?

What is the history of the parties’ relationship?

What outcomes are truly important to each side?

What resources—temporal, financial, and emotional—are available for the resolution process?

Only once these questions have been thoroughly explored can a genuine recommendation be made about the most appropriate dispute resolution method. This careful matching of dispute to process maximises the likelihood of achieving outcomes that are not merely technically resolved, but genuinely satisfactory to the parties involved.

Triage as Art and Science

Modern triage in ADR represents both art and science. The scientific element involves systematic analysis of objective factors: the legal framework governing the dispute, jurisdictional considerations, the enforceability of potential outcomes, the evidentiary requirements, and the procedural rules applicable to different ADR methods.

The art lies in the more nuanced assessment of human factors and contextual subtleties. Experienced triage practitioners develop an intuitive sense for when parties need the structure and finality of arbitration versus the flexibility and relationship-preservation potential of mediation. They recognise when power imbalances between parties might undermine direct negotiation, or when the complexity of technical issues calls for expert determination.

This combination of analytical rigour and professional judgment ensures that triage serves its essential purpose: matching each conflict with the resolution tool most likely to achieve a fair, efficient, and satisfactory outcome. It is, in essence, the art of ensuring that disputes are placed in the right forum from the outset, thereby maximising fairness, efficiency, and party satisfaction.

Conclusions

Triage in Alternative Dispute Resolution represents far more than an administrative convenience; it is a fundamental component of effective dispute resolution that can determine the success of the entire process. By carefully assessing each dispute’s unique characteristics and thoughtfully matching it to the most appropriate resolution method, proper triage saves time, reduces costs, and ensures that parties are not subjected to ill-suited procedures.

The principle that underpins effective triage—that dispute resolution should be appropriate rather than merely alternative—reflects a mature understanding of conflict resolution. It acknowledges that disputes are as varied as the parties who bring them, and that a sophisticated, tailored approach yields far better results than a standardised, cookie-cutter methodology.

As the field of dispute resolution continues to evolve, the importance of skilled triage will only increase. With an expanding array of ADR methods and hybrid processes available, the ability to navigate parties towards the optimal resolution path becomes ever more valuable. Organisations and practitioners who embrace this principle, placing appropriateness at the heart of their practice, will be best positioned to serve parties seeking not just any resolution, but the right resolution for their particular circumstances.​​​​​​​​​​​​​​​​