Alternative Dispute Resolution: A Primer
Alternative Dispute Resolution, or ADR, is a litigation alternative that has been rising in popularity. Rather than turning to the court system to resolve a conflict, ADR refers to negotiation, mediation, arbitration, or other non-litigation forms of reaching an agreement for settling disputes. Instead of presenting the facts and arguing a case in front of a judge or jury to have them decide the outcome, the parties play an active role in reaching a mutually beneficial solution through ADR. ADR is appropriate for any dispute including family law matters, employment or business disputes, and even personal injury claims.
ADR is an increasingly attractive option for clients and lawyers alike. It allows parties to actively participate in the problem-solving process, giving the parties control over pinpointing the best solution. Instead of being told what they should do, the parties share important information to help them understand the opposing party’s position. Then, they come together to work out a resolution that will meet their mutual needs. In many cases, ADR can be cheaper, less stressful, and more efficient than traditional litigation, and it can help preserve an amicable relationship between feuding parties.
While there are many forms of dispute resolution, we discuss three of the most common methods here: negotiation, mediation, and arbitration.
To explore additional forms of ADR, click here.
Method 1: Negotiation
Negotiation is involved in most – if not all – cases. But in many instances, a case can stop there: If the parties commit to an informal process of negotiation, they can often surpass the traditional litigation process entirely.
In the informal process of negotiation, disputing parties directly communicate their concerns to each other and together, discuss and decide on a resolution for the dispute. It is never too late to negotiate, even if the matter has gone to trial and an order has been signed by the judge. However, negotiation is a voluntary process so for this form of ADR to be successful, both parties must be willing to participate.
While the parties may have legal representation during the negotiation, there is no neutral third party like there is in mediation and arbitration, to facilitate the discussion or decide on an outcome.
Method 2: Mediation
Mediation has been a popular method of ADR for years, and it is on the rise. In a mediation, the parties rely on a mediator to facilitate productive discussions to reach an amicable result that is acceptable to both parties.
The decision to mediate a case is a voluntary one. As such, even when mandated by the court such as in child custody cases, parties may not be able or willing to reach an agreement. When this happens, the mediator does not have the authority to decide on a solution. Generally, mediation will only be successful when both parties are open to understanding, negotiating, and compromising to reach a mutually acceptable solution.
While most mediations begin with a joint session where each party has an opportunity to explain the issues, their interests, and their needs, most of the mediation is conducted through separate sessions with the mediator alternately touching base with both parties. Once the parties reach an agreement, the mediator may memorialize the agreement in a written contract which may then be enforceable in court.
Method 3: Arbitration
There are two primary types of arbitration: one ordered by the American Arbitration Association (AAA), and a court-ordered arbitration for state district court cases. The former tends to be expensive, with filing fees often exceeding $10,000. AAA arbitrations are agreed to in a contract between the parties. On the other hand, arbitrary court-ordered arbitrations are mandatory in certain types of local district court cases. Here, we will discuss the latter, as these are generally more common.
Unlike other forms of ADR, arbitration relies on a neutral third party, known as the arbitrator, to decide on a resolution. The parties in dispute agree to allow a third party, which can be one or several individuals, to decide the outcome after considering the evidence and hearing arguments.
In many ways, arbitration runs much like a traditional court hearing: parties make opening statements and present evidence, with the arbitrator hearing each side. While arbitration is like a trial in many ways, parties are not required to follow any rules of evidence and the arbitrator or decision-maker is not required to apply the governing law in deciding the outcome of the case. Instead, arbitration is a much more relaxed environment than the courtroom. The decision, known as an award, can be issued “bare bones,” or the arbitrator may opt to explain the decision with a “reasoned” award. If parties agree to binding arbitration, the arbitrator’s decision is final and enforceable in court. However, arbitration can also be non-binding, which yields an advisory award only.
Do I need an attorney for ADR?
Engaging an attorney is vital when addressing particularly complex disputes such as child support or custody issues and divorce-related matters like property distribution or spousal support. An agreement reached through a method of alternative dispute resolution results in a binding legal contract. Even if you believe the agreement is mutually beneficial at the time, it is risky to sign a contract relating to your children, finances, or property without first consulting an attorney. As such, before signing any agreement arising from ADR, it is helpful to have your attorney review the contract for any possible issues. As an advocate looking out for your best interests, your attorney can ensure that the agreement is clear, enforceable, and accomplishes the goals you intend.
If you have specific questions about the viability of an ADR method in your case, reach out to one of our attorneys for a consultation. At Strauch, Green & Mistretta, we are committed to delivering the best possible results for our clients and take pride in offering superior legal counsel.
This article does not establish an attorney-client relationship and must not be construed as legal advice.