Alternative Dispute Resolution (ADR)
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.
Know Your Rights!
- Arbitration Versus Mediation
Many have heard the term “alternative dispute resolution” associated with both arbitration and mediation, but may not have understood the difference. Indeed, many use the terms interchangeably even though they are very different procedures.
- How Binding and Mandatory is Arbitration?
The phrase “mandatory binding arbitration” sounds very final, but what does it really mean? How binding is an arbitration proceeding? Can one appeal an improper ruling? Can one avoid arbitration all together?
- Mediation Definition
Mediation law refers to a form of alternative dispute resolution (ADR) in which the parties to a lawsuit meet with a neutral third-party in an effort to settle the case.
- Tips for Negotiating and Mediating
Since negotiating is a necessary skill for everyone's life, it is a good idea to understand a few tips to give you the advantage for getting what you want.
Articles About Alternative Dispute Resolution
- Mandatory Arbitration in Real Estate DisputesReal estate deals often see conflict arising based on the factors of sellers and buyers not being able to resolve the matter between them. However, certain elements of the case may cause a mandatory arbitration being necessary. The most common form of mandatory procedures impacting a claim is state and federal laws pertaining to the issue at hand.
- Winning Mediation StrategiesNext to trial, mediation can be the most crucial day of litigating your case. That’s why it's important to spend time and effort having the case "trial ready" prior to even agreeing to mediate.
- ADR Services that Work BestAlternative dispute resolution (ADR) forms can be quite helpful for business owners who find themselves ensnared in legal disputes and conflicts with customers and/or other businesses. Litigation takes time, and as the old saying goes, “Time is money.”
- What Mediation Can Do for You in Your Family Law CaseMediation is a fast-growing area that first began changing the face of litigation in Texas in the late 1980's. Along with other forms of alternative dispute resolution, it gives family law clients another option in handing their case. Here are some interesting facts about mediation that you may not know.
- Defending Claims of Employer Retaliation in San DiegoCalifornia has witnessed a significant rise in the number of employer retaliation cases in the past few years. The exposure to San Diego employers is significant and it is important to tighten employment contracts, policy and procedure and employee manuals, as well as internal processes for responding to and documenting employee complaints.
- Accounting Fraud in CaliforniaCooking the books and other illegal strategies to gain economic advantage. Accounting fraud is the practice of purposefully or intentionally misrepresenting the financial accounting records of an LLC, corporation or business in California in order to mislead others. Accounting fraud is usually committed in an attempt to make a business or investment look more profitable than what it actually is in order to attract investors.
- Alternative Forms of Dispute ResolutionWhen a legal dispute arises, many individuals believe that litigation is the only way out. However, there are a number of ways that legal conflicts can be resolved without resorting to litigation, including negotiation, arbitration and mediation.
- What Can I do About a Late Contractor?When a person hires someone else to provide goods or services to him or her, the terms of the contract dictate when the work is to be performed or the goods to be provided. However, situations can occur in which the contractor is not providing timely delivery, and the customer may pursue legal action to enforce his or her rights.
- Filing a Lawsuit to Secure a Prompt & Enforceable SettlementWhile it’s true that litigation can be an extremely expensive means of dispute resolution, and that prompt, voluntary settlements are almost always preferable to extended litigation, it is also true, paradoxically, that filing a lawsuit can be the best way to settle a dispute promptly and effectively. This is so for two reasons.
- Disputes Between a California General Contractor and a SubcontractorThe nature of the relationship between a California general contractor and a subcontractor is legally quite complex. The general contractor awards a sub-contract based upon a bid, or extensive experience with a particular subcontractor. It is not unusual for work to begin on a jobsite under a subcontract prior to any physical agreement being drafted or signed.
- All Litigation Law Articles
Articles written by attorneys and experts worldwide discussing legal aspects related to Litigation including: alternative dispute resolution, antitrust and trade regulation, appellate practice, arbitration, business litigation, civil litigation, class actions, commercial litigation, corporate litigation, financial litigation, mediation, pharmaceutical litigation, product liability litigation, unfair competition.
Alternative Dispute Resolution - US
- ABA Dispute Resolution Section
As part of the American Bar Association, the world’s largest voluntary professional association, the Section of Dispute Resolution, with over 18,000 members, is the world’s largest association of dispute resolution professionals. Through our Section’s conferences, continuing education programs, research activities, information services, eNewsletter, publications, and mediation and arbitration institutes for neutrals and advocates throughout the United States, we deliver useful knowledge and training to our members.
- Alternative Dispute Resolution (ADR) - Air Force
The Air Force Alternative Dispute Resolution Program, administered by the Dispute Resolution Division of the Air Force General Counsel's Office, matches individual ADR needs with Air Force ADR resources, training and experts, and serves as the flagship ADR Program of the federal government.
- Alternative Dispute Resolution (ADR) - Department of Veterans Affairs
This site provides information on the Alternative Dispute Resolution (ADR) programs operating within the Department of Veterans Affairs; Workplace, Procurement, and Environmental. Each program can be accessed through a menu bar on the left hand side of this page.
- Alternative Dispute Resolution (ADR) - DOT
Disputes in the Federal sector arise in a variety of contexts. Acquisition-related disputes are typically bid protests brought by parties who are seeking awards of government contracts. Disputes in the workplace may be among or between employees, between employees and their managers, union grievances, or EEO complaints. Disputes arise under environmental laws among parties seeking access to or protecting natural resources. Civil enforcement disputes are as varied as the enforcement roles of the Department itself. In rulemaking, the various affected interests tend to develop adversarial relationships with each other causing them to take extreme positions, to withhold information, and to attack the legitimacy of opposing views. These conflicts have a cost. They can lead to low morale in organizations, delays projects, and years of litigation.
- Alternative Dispute Resolution (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.
- Alternative Dispute Resolution - Department of the Navy
SECNAVINST 5800.13A established the DON ADR Program Office with the following missions: * Coordinate ADR policy and initiatives; * Assist activities in securing or creating cost effective ADR techniques or local programs; * Promote the use of ADR, and provide training in negotiation and ADR methods; * Serve as legal counsel for in-house neutrals used on ADR matters; and, * For matters that do not use in-house neutrals, the program assists DON attorneys and other representatives concerning issues in controversy that are amenable to using ADR.
- Alternative Dispute Resolution - Wikipedia
Alternative dispute resolution (ADR) (also known as External Dispute Resolution in some countries, such as Australia) includes dispute resolution processes and techniques that fall outside of the government judicial process. Despite historic resistance to ADR by both parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried. The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.
- CPR Institute - International Institute for Conflict Prevention and Resolution
CPR Institute is a nonprofit organization based in New York City. Our mission is to spearhead innovation and promote excellence in public and private dispute resolution, and to serve as a primary multinational resource for avoidance, management and resolution of business-related and other disputes.
- FAA Alternative Dispute Resolution
The Office of Dispute Resolution for Acquisition (ODRA) is the sole, statutorily designated tribunal for all contract disputes and bid protests under the FAA’s Acquisition Management System. The ODRA dispute resolution process recognizes that it is in the best interests of the FAA and its private sector business partners to work collaboratively to avoid and, where possible, voluntarily resolve acquisition-related controversies in a timely and fair manner.
- National Arbitration Forum
In a field that is continually expanding and evolving, the Forum is setting the benchmarks by providing alternative dispute resolution services that consistently aspire to high legal and ethical standards. Our mission is simple: to provide a fair, efficient, and effective system for the resolution of commercial and civil disputes in America and worldwide.
- North American Free Trade Area (NAFTA) - Dispute Settlement Procedures
The North American Free Trade Area, comprising Canada, Mexico and the United States, was established in 1992 by the North American Free Trade Agreement (NAFTA). Like several other regional economic integration agreements, such as the European Communities, the EFTA, the Andean Community or the Mercosur, the objective of NAFTA is to remove trade barriers, create a common market, and promote economic cooperation between participating states. However, unlike most similar agreements, NAFTA falls significantly short of creating an integrated legal system, much less a structured dispute settlement system.
- Uniform Arbitration Act
The Uniform Arbitration Act (UAA), promulgated in 1955, has been one of the most successful Acts of the National Conference of Commissioners on Uniform State Laws. Forty-nine jurisdictions have arbitration statutes; 35 of these have adopted the UAA and 14 have adopted substantially similar legislation. A primary purpose of the 1955 Act was to insure the enforceability of agreements to arbitrate in the face of oftentimes hostile state law. That goal has been accomplished. Today arbitration is a primary mechanism favored by courts and parties to resolve disputes in many areas of the law. This growth in arbitration caused the Conference to appoint a Drafting Committee to consider revising the Act in light of the increasing use of arbitration, the greater complexity of many disputes resolved by arbitration, and the developments of the law in this area.
- United States Federal Government Gateway - Alternative Dispute Resolution (ADR)
Alternative dispute resolution (ADR) is a term generally used to refer to informal dispute resolution processes in which the parties meet with a professional third party who helps them resolve their dispute.
- US Department of Health & Human Services - Alternative Dispute Resolution Division
What We Do: * provide ADR services in appeals filed with the Board's other three Divisions (Appellate, Civil Remedies, and Medicare Operations Division); * support the Dispute Resolution Specialist (Constance Tobias, Chair, Departmental Appeals Board) in carrying out her responsibilities for ADR policy and program development.
- US Department of Justice - Office of Dispute Resolution
The mission of the Office of Dispute Resolution is to promote and facilitate the broad and effective use of alternative dispute resolution (ADR) processes by the Department of Justice and throughout the Executive Branch of the federal government. The office is responsible for promoting and evaluating the use of ADR at the Department, representing the Department leadership with foreign governments and the private sector, and facilitating the effective use of ADR in litigation and other agency disputes. The office also represents the Attorney General in leadership of federal ADR through the Interagency ADR Working Group Steering Committee, an organization which was created by the President and convened by the Attorney General to promote the use of ADR throughout federal executive branch agencies.
Alternative Dispute Resolution - International
- ADR Chambers International
- ADR Institute of Canada
- Association for International Arbitration (AIA)
- Canadian Bar Association - National Alternative Dispute Resolution Section
- International Alternative Dispute Resolution - World Bank
- International Chamber of Commerce (ICC) - Commission on Arbitration
- International Court of Environmental Arbitration and Conciliation
- LEADR - Association of Dispute Resolvers - Australia
- Permanent Court of Arbitration
Organizations Related to Alternative Dispute Resolution
Publications Related to Alternative Dispute Resolution
- Alternative Dispute Resolution A Resource Guide - US Office of Personnel Management
- Center for Alternative Dispute Resolution - Publications
- International Finance Corporation (IFC) - Alternative Dispute Resolution - Publications
- United States District Court - Eastern District of New York - Alternate Dispute Resolution
- World Directory of ADR Blogs