Alternative Dispute Resolution Comes of Age

Alternative Dispute Resolution, or ADR, is the umbrella term used to describe a series of dispute resolution processes and techniques that are used as alternatives to going to court to resolve a dispute. Some techniques are well established, like mediation and arbitration. Others are newer or used less often.

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In matching a particular technique to a particular dispute, attention is often paid to

  • Formality - which impacts the amount of control you have. The more formal the proceedings the less control by the individuals involved.

  • Finality of outcome - whether you will have recourse to other alternatives if the things fall apart.

  • Cost - both in terms of currency and time.

COMMONLY USED ADR TECHNIQUES

Charted From Least to Most Formal

L Negotiation A process in which two or more participants attempt to reach a joint decision on matters of common concern in situations where they are in actual or potential disagreement or conflict.

E Collaborative Law A relatively new ADR technique wherein each the disputing party retain counsel who are given the specific mandate of settling the dispute. The settlement counsel are not permitted to participate in any subsequent proceedings, in any capacity, if the attempts at settlement fail.

A Mediation Negotiation assisted by a trained third party hired by the disputing parties to assist them in arriving at a mutually satisfactory resolution. It is private, voluntary, non-binding, confidential and flexible.

S Conciliation Process in which the disputing parties, with the assistance of a neutral third party (the conciliator), identify the disputed issues, develop options, consider alternatives and endeavor to reach an agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role.

T Facilitation Process by which a third party helps to coordinate the activities of a group, acts as a process facilitator during meetings, or helps a group prevent or manage tension and move productively toward decisions.

Early Neutral Evaluation Neutral assessment is a process by which an experienced neutral gives a non-binding, reasoned, oral or written evaluation of a controversy, on its merits, to the parties. It is private, voluntary, non-binding and confidential

T Neutral Fact-Finding In neutral fact-finding, an impartial third party is selected either by the parties or the court to investigate an issue and report or testify in court. It is most often used for resolving complex scientific or factual disputes.

O Ombudsperson Generally, ombudspersons make non-binding advisory reports and recommendations to the those responsible manager about how to resolve a dispute. They, sometimes, can issue decisions that are binding. Used by corporations, educational institutions, government agencies, trade groups and consumer agencies to investigate and assist in resolving grievances and complaints.

Mini-Trial Private, voluntary, non-binding, and confidential procedure that takes the form of a "mock trial" in which the disputing parties make submissions to a panel comprised of senior executives of the disputing parties and a third-party neutral. Generally the panel then engage in settlement negotiations.

Summary Jury Trial In this process, the attorneys for each side present abbreviated versions of their case to a mock six person jury (made up of members from the regular jury pool), a presiding judge or magistrate and representatives for each party with negotiating authority. The mock jury renders a suggested verdict which is then used as the basis for further negotiation by the parties representatives.

The "verdict" provides the parties with a realistic assessment of the strengths and weaknesses of their case and is often helpful in assisting the parties in reaching a settlement.

M Settlement Conference A settlement conference is a meeting between attorneys and a presiding judge or magistrate for the purpose of settlement before going to trial. While the judge is a third party neutral who explores settlement with both sides these conferences are shorter, have less possibility for personal participation by the parties and don't consider nonlegal interests.

O Arbitration Process in which the parties to a dispute state their views, offer evidence at an arbitration hearing, and agree to let an impartial, professionally-trained arbitrator make a decision that will end the dispute. In most cases, once the arbitrator hears the evidence, he or she hands down a binding decision.

There is, however, also non-binding arbitration where the disputing parties put their case before an impartial third party who renders an opinion or recommendation, which the parties may choose to accept or not.

S Private Judging A process in which the parties hire a third party neutral as their own judge to hear and decide their case. Most often the neutral is a former judge with experience in the area under dispute. The private judge hears the case, decides the matter and hands down a ruling which is binding.

T Litigation Formal, public process for resolving disputes before national and state courts. Decisions are binging.

Advantages of Alternative Dispute Resolution

ADR techniques are remarkably flexible and can be tweaked to be used in a wide variety of disputes from divorce to commercial disputes to peace negotiations. Since over 90% of all cases filed in court eventually settle, it makes sense to explore your options early and keep an open mind.

ADR processes have several pluses over traditional litigation:

  • Cost less

  • Faster

  • Give You More Control Over the Outcome

  • Have More Flexible Rules

  • Less Formal

  • Provide You with Greater Participation in Reaching a Solution

When Not to Use ADR

  • When one side refuses to acknowledge that a problem exists or is reluctant to participate in negotiation. NOTE, this is different than the situation where emotions are high. ADR can work effectively in the later but not in the former.

  • When one side is less interested in resolution and more interested in making a statement or causing trouble.

  • When the purpose is to get one side to STOP NOW! E.g. harassment or misappropriation of property.

  • When it is important to establish a legal precedent. E.g. mediating or arbitrating the dispute in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) could have provided the same result, i.e. that a African American student be allowed to attend a previously all white school, but the social implications and legal precedent that led to school desegregation would have be absent.

So far we have focused on ADR as the alternative to a lawsuit, but the field has evolved. There are now branches of Alternative Dispute Resolution that help businesses to resolve disputes before they mushroom into lawsuits through the development of ADR Systems. ADR can also be used in support of public policy making through such tools as facilitation, conciliation, and negotiated rulemaking. You know where we are headed.

For more information about Alternative Dispute Resolution, click on any of the links below.

To learn more about other conflict resolution topics, click on any of the links below.


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