Alternative Dispute Resolution
Definition
Any method of resolving disputes without litigation. Abbreviated as ADR. Public
courts may be asked to review the validity of ADR methods, but they will rarely
overturn ADR decisions and awards if the disputing parties formed a valid
contract to abide by them. Arbitration and mediation are the two major forms of
ADR.
Overview
Alternative Dispute Resolution ("ADR") refers to any means of settling disputes
outside of the courtroom. ADR typically includes early neutral evaluation,
negotiation, conciliation, mediation, and arbitration. As burgeoning court queues,
rising costs of litigation, and time delays continue to plague litigants, more states
have begun experimenting with ADR programs. Some of these programs are
voluntary; others are mandatory.
While the two most common forms of ADR are arbitration and mediation,
negotiation is almost always attempted first to resolve a dispute. It is the
preeminent mode of dispute resolution. Negotiation allows the parties to meet in
order to settle a dispute. The main advantage of this form of dispute settlement
is that it allows the parties themselves to control the process and the solution.
Mediation is also an informal alternative to litigation. Mediators are individuals
trained in negotiations, who bring opposing parties together and attempt to work
out a settlement or agreement that both parties accept or reject. Mediation is not
binding. Mediation is used for a wide gamut of case-types ranging from juvenile
felonies to federal government negotiations with Native American Indian tribes.
Mediation has also become a significant method for resolving disputes between
investors and their stockbrokers.
Arbitration is more formal than Mediation and resembles a simplified version of a
trial involving limited discovery and simplified rules of evidence (ex.hearsay is
usually admissible in arbitration). Prior to the dispute occurring, parties usually
enter into a binding arbitration agreement or any other form of agreement with an
arbitration clause, that allows them to lay out major terms for the arbitration
process (number of arbitrators, arbitration forum; arbitration rules; fees etc.). If
parties still have disputes about certain terms before entering into an arbitration,
they can petition to a court to resolve a dispute. Arbitration can be held ad hoc or
with the administrative support from one of the institutional providers like
American Arbitration Association (AAA) or JAMS. The arbitration is headed and
decided by an arbitral panel or a single arbitrator, depending on the agreement
of the parties. Arbitrators do not have to be lawyers; parties can select arbitrators
from other fields that they consider more suitable for the resolution of the dispute.
For example, parties can choose an arbitrator with an engineering background to
arbitrate a construction dispute. To comprise a panel, either both sides agree on
one arbitrator, or each side selects one arbitrator and the two arbitrators elect the
third. Arbitration hearings usually last between a few days to a week, and the
panel only meets for a few hours per day. The panel or a single arbitrator then
deliberates and issues a written binding decision or arbitral award. Opinions are
not public record. Arbitration has long been used in labor, construction, and
securities regulation, but is now gaining popularity in other business disputes.
What are some other advantages of ADR?
ADR often saves money and speeds settlement. In ADR processes such as mediation,
parties play an important role in resolving their own disputes. This often results in creative
solutions, longer-lasting outcomes, greater satisfaction, and improved relationships.
Definitions of ADR Processes
Arbitration: a neutral person called an "arbitrator" hears arguments and evidence from each
side and then decides the outcome. Arbitration is less formal than a trial and the rules of
evidence are often relaxed. In binding arbitration, parties agree to accept the arbitrator’s
decision as final, and there is generally no right to appeal. In nonbinding arbitration, the
parties may request a trial if they do not accept the arbitrator’s decision.
Case Conferencing: in case conferencing, a judge or the judge’s representative meets with
the parties and their attorneys to try to settle some or all of the issues in dispute before going
to trial. Parties’ participation is limited, and the focus is on narrowing the issues in dispute.
Collaborative Law: a problem-solving process that gives divorcing parties and their lawyers
a way to end a marriage and restructure families without the stress, delay, and expense of
litigation. Collaborative law is founded on three principles: 1. A pledge not to litigate disputes
in court; 2. An honest, voluntary, prompt, and good-faith exchange of relevant information
without formal discovery; and 3. A commitment to strive for solutions that take into account
the highest priorities of both parties and their children. Although the lawyers share a
commitment to collaborative law principles, each lawyer has a professional duty to represent
his or her own client diligently and is not the attorney for the other party.
Mediation: a neutral person called a "mediator" helps the parties try to reach a mutually
acceptable resolution of the dispute. The mediator does not decide the case, but helps the
parties communicate so they can try to settle the dispute themselves. Mediation may be
particularly useful when family members, neighbors, or business partners have a
dispute. Mediation may be inappropriate if a party has a significant advantage in power or
control over the other.
Neutral Evaluation: a neutral person with subject-matter expertise hears abbreviated
arguments, reviews the strengths and weaknesses of each side’s case, and offers an
evaluation of likely court outcomes in an effort to promote settlement. The neutral evaluator
may also provide case planning guidance and settlement assistance with the parties'
consent.
Parenting Coordination (PC): a child-focused process in which a trained and experienced
mental health or legal professional called a “parenting coordinator” assists high-conflict
parents to carry out their parenting plan. With prior approval of the parties and the court, the
parenting coordinator may make decisions within the scope of the court order or appointment
contract. The purpose of Parent Coordination is to help parents resolve conflicts regarding
their children in a timely manner and try to promote safe, healthy, and meaningful parent-
child relationships.
Summary Jury Trials (SJT): In this adversarial dispute resolution process, each side
presents its case in a shortened form to a jury. The jury then makes a decision, which is
advisory only, unless parties request that it be a binding decision. A summary jury trial gives
parties a preview of a potential verdict should the case go to trial. SJTs are available in
limited jurisdictions.
