What is ADR?

With the increase in litigation costs and court congestion, individuals and business entities are turning to alternative dispute resolution or “ADR” to resolve their disputes. While ADR denotes a variety of techniques to resolve disputes outside the courtroom, the following proceedings typically come within the rubric of “ADR”: negotiation, mediation, neutral fact finding, early neutral evaluation, mini-trials, summary jury trials, arbitration and private judging. Although each of these ADR methods has its own characteristics, they generally enable the parties to:

1. Resolve their dispute in a confidential setting;
2. Establish deadlines and procedural rules governing the proceedings;
3. Select the presiding official or “neutral”
4. Contain litigation costs; and
5. Maintain on-going business and personal relationships.

ADR may not be appropriate in all settings, for example, where:

1. The parties want a jury trial;
2. The dispute turns on witness credibility;
3. Public resolution of a novel legal issue (e.g. legal precedent) is needed to discourage similar claims;
4. One wants to preserve full rights of appeal; or
5. The possibility of settlement is so slim that ADR may only achieve educating the other side about the weaknesses of one’s case.

 

Negotiations

A dialogue intended to resolve disputes to produce an agreement upon courses of action, to bargain for individual or collective advantage, or to craft outcomes to satisfy various interests. It is the primary method of ADR.  Negotiation can occur in business, non-profit organizations, government branches, legal proceedings, among nations and in personal situations such as marriage, divorce, parenting, and everyday life.

Mediation

The goal of mediation is to amicably resolve a dispute through the efforts of the parties. The role of the mediator is to utilize patience, persuasion and people skills to facilitate the dialogue between the parties in order to reach settlement. The mediator does not have the authority to render a decision; the parties are not compelled to reach an agreement. Any party is free to leave the mediation at any time.

Neutral Fact Finding

Beyond the basic types of alternative dispute resolutions there are other different forms of ADR.  Neutral fact-finding is a process where a neutral third party, selected either by the disputing parties or by the court, investigates an issue and reports or testifies in court. The neutral fact-finding process is particularly useful for resolving complex scientific and factual disputes.

Early Neutral Evaluation

Beyond the basic types of alternative dispute resolutions there are other different forms of ADR.  Early neutral evaluation is a process that takes place soon after a case has been filed in court. The case is referred to an expert who is asked to provide a balanced and neutral evaluation of the dispute. The evaluation of the expert can assist the parties in assessing their case and may influence them towards a settlement.

Mini-Trials

A confidential, nonbonding exchange of information, intended to facilitate settlement. The goal of mini-trial is to encourage prompt, cost-effective resolution of complex litigation. This two-step process is used to facilitate settlement in which (a) the parties’ attorneys present a summary of the evidence and arguments they expect to offer at trial to a neutral in the presence of individuals with decision-making authority for each party, and (b) the individuals with decision-making .  Mini-trials can be described as a more elaborate version of early neutral evaluation.

Summary Jury Trial

An ADR technique, increasingly being used in civil disputes in the United States.  It is one of the new forms of dispute resolution being advanced by the regular courts in an effort to reduce docket congestion. In essence, a mock trial is held; a jury is selected and, in some cases, presented with the evidence that would be used at a real trial.  In other cases, live evidence is not presented. The parties are required to attend the proceeding and hear the verdict that the jury brings in. After the jury verdict, the parties are required to once again attempt a settlement before going to a real trial.

Arbitration

Arbitration is an adversarial process where a neutral arbitrator renders a decision, called an award, after there has been a presentation of evidence. Like a court trial, arbitration may include representation by counsel, pre-hearing discovery, written briefs, examination of witnesses and oral argument.

Private Judging

A process in which the parties to a dispute present arguments and evidence to a dispute resolution practitioner chosen on the basis of their experience as a member of the judiciary (the private judge) who makes a determination in accordance with their opinion as to what decision would be made.  This process is agreed to by the parties whereby the dispute is presented to a neutral third party, typically an experience attorney or retired judge, hired by the parties, who renders a binding decision.

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