Alternative Dispute Resolution (ADR)


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What is Alternative Dispute Resolution (ADR)?

ADR is a term used to describe several different methods of resolving legal disputes without going to court. The rising cost of litigation is making traditional lawsuits impractical for many individuals and businesses. At the same time, civil courts face backlogged dockets, resulting in delays of a year or more for private parties to have their cases heard by a jury. New types of proceedings have been developed in response, and they are proving beneficial, saving time and money for everyone involved. These include arbitration, mediation, and additional kinds of ADR designed for specific cases and subject matters.

Binding and Non-binding Arbitration

Arbitration is much like a trial, in that the parties can call witnesses, present evidence, and argue the merits of their case to a neutral decision maker. In many jurisdictions, civil litigants whose claims do not exceed a certain dollar amount may be ordered to attend arbitration by the court, in an effort to keep the court’s docket clear for more substantial lawsuits. Local court rules may also allow litigants to elect for their case to be sent to arbitration regardless of the dollar amount at stake. In doing so, the parties can agree that the results of the arbitration will be binding or non-binding. In non-binding arbitration, the loser can afterwards request a new trial in the civil court.

The court will appoint a well-established attorney in the local area to perform the duties of arbitrator. This person will act as a judge at the arbitration hearing, listening to the evidence and rendering a decision. Parties may be given some amount of say in the arbitrator selection process. At a minimum, they will be allowed to strike potential arbitrators with whom they have had prior dealings.

Once a case is sent to arbitration, a conference will be held either by telephone, or in person at the arbitrator’s office. Much like a pre-trial conference in civil court, this is the opportunity for the parties to give the arbitrator an overview of what the case is about, and to discuss any evidentiary issues in advance of the arbitration hearing. On the day of the hearing, the parties will meet in a conference room at the arbitrator’s office or in an empty room at the courthouse. Each side will present its case over the course of several hours. Afterward, the arbitrator can render a decision immediately, or take the matter under advisement and issue a written decision in the following weeks.

Using Mediation to Reach a Settlement

Mediation is a much different type of ADR proceeding. Unlike arbitration, it does not involve an adversarial hearing, and there is no decision-making official present. Instead, the parties involved in the dispute are brought together in one location, and a neutral facilitator acts as a go-between. The job of the mediator is to help the parties reach a voluntary settlement of the case. For litigants and attorneys who have become antagonistic toward each other over the course of the litigation, or who have unrealistic expectations concerning the outcome of the case, mediation may be their only chance to avoid having to go to trial.

A typical mediation begins with everyone meeting in the same room, and each party giving a short presentation to the mediator. The purpose of the presentation is to give an overview of the facts and impress upon the mediator the relative strength of that party’s case. The parties then split up into two rooms. The mediator goes back and forth between the rooms, personally relaying the parties’ settlement offers and responses. Parties can share information with the mediator in confidence, and the mediator will give the parties his or her own thoughts about the case. In the end, the goal is for the parties to agree on how the case should be resolved.

Collaborative Divorce and Specialist Evaluations

Divorce cases have the potential to turn into bitterly contested ordeals. A collaborative approach to divorce aims to remove the “win-lose” mentality so common in these cases. Both spouses are still represented by their own attorneys, but family counselors, financial professionals, and others are brought into the negotiations as well. In a series of group sessions, the parties discuss and reach agreement on issues such as property division, alimony, and child custody and visitation.

ADR can also take the form of an evaluation and mediation-type proceeding overseen by a legal professional with specialized training in the subject of the dispute. For example, parties in a construction defect lawsuit may agree to present their evidence to a neutral individual who is both an attorney and an architect. This person will know more about proper construction techniques than a judge or jury, and may be able to help the parties resolve their differences at a far lower cost than traditional litigation.

Attorney Representation in ADR Cases

If you are looking to cut short the litigation process, ADR may be the answer. But regardless of the type of ADR proceeding you are contemplating, you need independent legal advice to protect your interests. Contact an attorney to learn more about the benefits of resolving your case out of the courtroom.

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Organizations Related to Alternative Dispute Resolution

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