Alternative dispute resolutions are a set of procedures that help people settle disputes without going to court. They are usually less formal, less stressful, and save money compared to court proceedings.
The most common forms of ADR are negotiation, mediation, conciliation, neutral evaluation, and settlement conferences. Each of these methods leave control of the outcome to the parties themselves.
Mediation
There are many paths to resolving disputes — or, more appropriately, alternatives to protracted litigation. The path you choose may depend on the issues at stake, your level of comfort with compromise and other considerations.
Mediation is a form of alternative dispute resolution in which a neutral person helps the disputing parties find a solution to their conflict. It is often less formal than a trial and allows the participants to focus on the underlying circumstances that contributed to their dispute. It is also generally more prompt, inexpensive and procedurally simple than formal litigation.
In mediation, a neutral third party trained in negotiation assists the disputing parties to communicate with one another and create options for resolution. The neutral person doesn’t decide the outcome – that is left to the disputing parties. Some types of mediation are available through community Dispute Resolution Centers. Other forms of mediation include ombuds, case evaluation and neutral factfinding. An example of a hybrid ADR method is a mini-trial, in which lawyers present abbreviated versions of their cases to a panel composed of a representative from each side and a neutral member. Then the panel members conduct settlement negotiations.
Arbitration
If the parties to a dispute cannot come to an agreement, arbitration is an option that allows them to present evidence and arguments to an arbitrator who will act like a judge. The arbitrator will then create a binding determination known as an award. The decision of the arbitrator can be appealed, but only in very limited circumstances.
The process is typically less formal than a trial and the rules of evidence are relaxed. Arbitration can be used alone or in combination with mediation or conciliation (called “Med-Arb”).
Whether it’s routine contract drafting or bet-the-company litigation, many problems arise that may require a quick resolution outside of the courtroom. Using ADR helps to keep costs down, resolve disputes in a timely manner and maintain confidentiality. In addition, ADR offers the potential to resolve disputes that are too sensitive or complex for a court-based solution. Learn more about alternative dispute resolution by speaking with an attorney in your area.
Conciliation
Conciliation is a process in which an independent third party, known as the conciliator, meets with disputing parties individually and together to identify disputed issues, ideate solutions, consider alternatives, help the parties explore options and reach an agreement. The conciliation process may include the use of professional expertise, but the conciliator does not make a judgment or decision about the dispute.
As court dockets grow and litigation costs escalate, alternative dispute resolution is growing in popularity as a cost-effective option to traditional legal proceedings. ADR includes a broad range of processes and techniques that can be used to resolve disputes without the involvement of court personnel or lawyers.
People involved in a case might choose to participate in an ADR process by themselves, or they may be referred to it by the court, an attorney or a government agency. A person who is not involved in a dispute might be invited to attend an ADR session as a witness or observer.
Case Evaluation
The purpose of case evaluation is to provide a reality check for parties in a lawsuit. This is often done early on in a lawsuit, but can be conducted at any time during the process. The goal of a case evaluation is to help the parties to come to an agreement on a settlement or at least narrow the legal and factual issues so that a trial can be scheduled as quickly as possible.
The attorneys for each side will present a summary of their client’s case to the neutral evaluator, who questions them in a back-and-forth session designed to clarify and focus the issues. The evaluator will then prepare an evaluation, outside of the presence of the parties, which may include an estimate, where feasible, of the likelihood of liability and the dollar range of damages.
Currently, a court case is required to undergo case evaluation if it involves a claim for damages of $10,000 or more. This can be a useful way to level the playing field and encourage settlement negotiations, especially as it is a relatively fast and inexpensive process.