What Is Alternative Dispute Resolution?
Which Form of ADR Should You Choose?
What is ADR?
Alternative Dispute Resolution (ADR) is the ideal solution for those seeking to avoid litigation. ADR is available is different forms—commonly negotiation, mediation, and arbitration. We begin with an overview of the ADR movement, surveying the different types of solutions and their complexities. We then look at how to proceed with ADR, ending with a look at the pros and cons as compared to litigation.
Most people don’t realize that only 1% of civil cases filed are disposed of by trial. In reality, most civil cases end up being decided through the process of negotiation. In the early 1900s Mediation became commonplace within immigrant and religious groups, with an increase in the professional realm in the 1940s. During the 1960s and 1970s ADR was seen as a way to bring together different racial groups. People began to see mediation as a means to dispute in “warmer” ways. The Uniform Mediation Act (UMA) was established to create a privilege against disclosure of mediation communications in trials and other legal proceedings, which makes ADR a more favorable option for many. In 2003 the Act was amended to facilitate state adoption of the 2002 UNCITRAL Model Law on International Commercial Conciliation.
Choosing Your Method of ADR
How to Negotiate
Negotiation, the preeminent mode of ADR, is essentially communication for the purpose of persuasion. It is a way for two or more parties to arrange future relationships and make deals with each other. Dispute settlement, one type of negotiation, can focus on the interests, rights, and powers of the parties. Interest-based negotiation is the most preferable of these as it has the greatest likelihood of leading to a mutually advantageous agreement and imposes the fewest relational and financial costs.
Although it is up to your client, you should help him or her asses the strengths and weaknesses of the his or her position. You should consider the likelihood of success at a hearing, the risks and benefits of either outcome, and the costs of litigating the case.
There are multiple strategies to be considered when you negotiate. It is not as easy as you might think because you must search for the deep-seated concerns of your own client as well as the true interests of the other party. People often claim to desire tangible items—for example, in a divorce one party demands the house—but the true issue that underlies the demand is often unstated—for example, the ability to maintain the image of remaining in a certain neighborhood.
You do not have to be likable when you negotiate. You can play hardball and make statements like, "this is the best I can offer" or "this is the lowest I can go." But be warned: you do not want to be caught bluffing. It is okay to fluff—make something appear fuller by manipulating the facts a little—but do not outright lie. You will appear less trustworthy and will lose the upper hand.
How Will You Get Justice?
How to Be a pro Mediator
Mediation is a great alternative to negotiation. Although it is less common, it can be perceived as more fair because there is a third party who assists the disputants in reaching their agreement. The mediator is not like a judge—he or she has no authority to compel the parties to a resolution. Sometimes there is no resolution, and this may be the most ideal solution for the situation.
This type of ADR is often sought by couples seeking or considering divorce. The mediator decides whether to have both parties in the same room; often this decision is made after an interview with each client. It is important to meet with clients separately because you will glean a better understanding of their perspectives and positions on the dispute. Make sure each party feels he or she can trust you, and that his or her interests are important to you.
As a mediator you should consider yourself a dealer or broker. You may have to push one or both parties to do things that make them uncomfortable, but in the end this can save the parties time and money. This is the goal. If you can accomplish in a few hours or days what it could take the parties months to achieve, you are a pro mediator!
When acting as mediator you have many choices to make—for example, is it necessary to keep everything confidential from either party? That is, if one party tells you something but demands you not share it with the other party, what will you do? You are certain that sharing this information would lead to a simple resolution, but sharing the information with one party would dissolve the trust you have with the other. If you simply let your clients know beforehand that they must leave it in your sole discretion to disclose or not, you are in control of this problem. Having the control is ideal because both parties will know that you are not favoring one side over the other.
Nota Bene: a party may be required by law to disclose certain financial information. Make sure you are aware of the laws of your jurisdiction!
Consider Time and Money
When to Use Arbitration
Arbitration is another cost-effective alternative to litigation. Although it is less formal, it proceeds in a similar fashion to a trial. Arbitration starts when you submit a dispute to a third party or parties for a final and binding decision, called an "award." An award is made in writing and is almost always final and binding on the parties in the case. When a decision is binding it means that you are legally or contractually bound by its terms. The American Arbitration Association (AAA) begins administration of an arbitration case when a party submits a Demand for Arbitration, along with a copy of the arbitration provision and a filing fee. After this the other party, the "respondent" is notified by the AAA, and a deadline is set for an answer and/or counterclaim. The arbitration usually includes one or three arbitrators, the identities of whom should be agreed upon by both parties.
Arbitration agreements became more common in the labor and employment field after a landmark 1991 Supreme Court case, Gilmer v. Interstate/JL Corp., 500 U.S. 20 (1991). This case expanded the types of suits that could be subject to binding arbitration. Over the next six years there was a 500 percent increase in arbitrations! See Dianne LaRocca, The Bench Trial: A More Beneficial Alternative to Arbitration of Title VII Claims, 80 CHI.-KENT L. REV. 933, 934 (2005).
Arbitration is appealing because the parties can choose the format, rules, timeline, and process of the procedure. It is generally faster than litigation, but can be more costly. Arbitrations often take place in conference rooms instead of courtrooms, and discovery is usually much less invasive than in litigation. If you want your dispute resolution to happen in the style of litigation, without some of the disadvantages, arbitration is your best bet. One thing to remember: you may not have a choice. Arbitration agreements are common in on websites and certain purchases made. You should always read through any agreement you approve. User Agreements
Resolve Community Disputes
Will you use ADR?
ADR is preferable to trial because it is generally less formal, quicker, and less expensive. If binding, ADR opinions can usually be filed with a court and turned into a judgement down the line. Trial, on the other hand, is more formal, slower, and more expensive. Longer trials mean greater attorney fees; however, if the prevailing party will have the attorney’s fees paid for this may be desirable. Another thing to consider: many Americans want to have their case heard and decided by a judge. If this sounds like you, keep in mind that this will not happen if you choose ADR!