What is Alternative Dispute Resolution?
Alternative dispute resolution ("ADR") can be used to resolve
a civil dispute outside the courtroom. The goal of ADR is to
resolve disputes expeditiously and inexpensively, but with the
same degree of fairness, impartiality and justice that society
demands from a court system. The most common ADR
methods are mediation and arbitration. In an era when the
court system is increasingly overloaded with civil lawsuits and
criminal matters (which take precedence over civil lawsuits
within the court system), ADR offers businesses and
consumers the opportunity to bypass the court system and
reach a resolution of a dispute in a timely manner, usually at a
cost substantially less than would be incurred if the same
matter was in the judicial system.
What is Mediation?
Mediation is an informal ADR process using a neutral third
party to assist the parties in reaching a voluntary resolution of
their dispute. Unlike an arbitrator, the mediator is not the
decision maker. The mediator helps the parties reach a
mutually acceptable middle ground between their respective
positions. In essence, the mediator facilitates the
development of a settlement that the parties might not have
reached without the mediator's efforts. Generally, at least
part of the mediation involves the mediator and the parties
together in the same room or on the same conference call
discussing the merits of their respective positions and
settlement alternatives. Sometimes "shuttle" mediation, in
which the mediator meets with one side and then the other to
bring the parties closer to the middle ground, can be
effective. Shuttle mediation allows each party to be more
open with the mediator regarding their evaluation of the case.
When appropriate, the mediator can then discuss with each
party what part of its demands or expectations are unrealistic.
Unlike arbitration in which the arbitrator makes the decision,
mediation is only final and binding if the parties agree. This
agreement is then reduced to a writing which is signed by the
parties. If the parties agree, all communications during
mediation can be confidential and inadmissible in court if the
parties are unable to come to an agreement.
Uses for Mediation You Probably Never Considered
Conflict Prevention. Mediators don’t always help parties end
relationships; sometimes they help parties form them.
Mediators can also assist parties in modifying agreements that
govern these relationships.
Case Assessment. Parties to a dispute are sometimes unsure
whether or their dispute ready or appropriate for Mediation. A
session with a mediator could enable the parties to: (1)
understand the benefits of mediation; (2) determine whether
the dispute is appropriate for mediation; (3) assess whether
the dispute is ripe; and (4) locate an appropriate mediator.
Convening. A mediator can be retained to discuss the
advantages that mediation would offer in the instant dispute
and to persuade the recalcitrant party to at least try mediation
for a session.
Managing Information Gathering. Parties to a lawsuit can
employ a mediator to: (1) help develop a document production
process; (2) create discovery schedules; (3) resolves disputes
over document production and interrogatory submission; (4)
resolve disputes arising during depositions; (5) help the
parties interpret vague court orders; and (6) productively use
court mandated settlement conferences.
Expert Coordination. A mediator can assist the parties to
resolve issues arising out of the use of experts.
What is Arbitration?
Arbitration is an informal process which can be likened to a
private trial. An arbitrator takes evidence (oral or written) and
then renders a decision. The parties to a dispute must either
agree to arbitrate or a prior agreement between the parties
must compel them to arbitrate. Arbitration can be binding or
non-binding. In binding arbitration the parties are bound by
the arbitrator's decision which can be enforced by the
prevailing party in a court of competent jurisdiction. An
arbitrator's decision can only be appealed under limited
circumstances such as fraud. In non-binding arbitration either
party may ignore the arbitrator's decision and proceed to
court. Non-binding arbitration is generally used by the parties
to guide them to a settlement.
THE RAE GROUP
An organization dedicated to the
resolution of disputes in an
impartial, expeditious and cost
effective manner, designed to
preserve existing relationships.
ABOUT ALTERNATIVE DISPUTE RESOLUTION
ADR makes conflict
adversarial and more