Alternative Dispute Resolution
Resolving Conflicts Outside The Courtroom
Alternative Dispute Resolution (ADR) is a rapidly growing trend using different methods to resolve legal disputes between individuals, family members, or businesses without going through the very formidable, protracted, and expensive court process. ADR offers parties to disputes with alternative approaches that are more efficient, faster, and much less expensive than litigating in court. With the numerous and substantial benefits of ADR, it is no surprise that one form or another of ADR is now often required in many contracts, and many courts have or are developing ADR programs that are mandatory to litigants before their cases will be heard in court in order to alleviate the courts’ substantial backlog of civil cases. ADR procedures range from arbitration, which is the most similar to a court proceeding, and numerous collaborative approaches including mediation, which is the least similar to a court proceeding.
Arbitration is very similar to a court proceeding. A dispute is presented by the parties, typically following evidentiary and procedural rules that are more relaxed than those followed in court. Instead of a judge or jury, arbitration is before one or more arbitrators that were selected in advance by the parties, often with a focus on the arbitrators’ experience and expertise in the areas of law or industry that are involved in the dispute. Thus, the parties have more control over the arbitration process than the court process. Arbitration may be binding or nonbinding. If the parties have agreed to binding arbitration, then much like in a court proceeding, the arbitrators’ decision may not be viewed as a favorable outcome by any of the parties.
Settlement conferences are often conducted by retired judges, and typically involve the retired judge providing an evaluation of the strengths and weaknesses of the party’s positions, and the risks and rewards each party will face if there is no settlement. Settlement conferences are typically attended by counsel, and the facilitator may meet several times with each party separately in an effort to narrow the gap and get the parties to reach a settlement.
Mediation is a voluntary process in which the parties select an impartial person to serve as a neutral mediator. Mediation is very different from a trial in a courtroom (or binding arbitration) in many respects, including the process and the outcome. Instead of a proceeding conducted by a judge or panel of arbitrators, the mediator will facilitate a discussion of the issues and possible resolutions among the parties. In general, there are three possible outcomes in mediation: (i) the parties arrive at a full resolution that they have fashioned themselves, (ii) the parties achieve partial resolution and thereby narrow their differences, or (iii) mediation is terminated by the parties without any resolution. There is no worst case scenario outcome where none of the parties is pleased with the outcome as there might be in court or in binding arbitration. In addition, in an agreement fashioned by the parties, there may be terms agreed upon that would not be available to the parties in a judgment handed down to the parties in court.
Our Alternative Dispute Resolution Team
Members of the firm’s ADR Team have substantial experience serving clients as advocates in ADR proceedings, or have experience and training as arbitrators or mediators.
Our Court-Certified Arbitrators and Mediators
To learn more about how our firm’s ADR Team may benefit you or your business, please click the link below.