ADR - Resolving Disputes In Different Ways

"Alternative Dispute Resolution" processes are ways of resolving disputes that
do not involve the traditional "litigation" model of judicial dispute resolution. It
includes a number of different mechanisms, including arbitration, mediation,
case evaluation, summary mini-trials, and others.  ADR can be effective in to
resolving controversies quickly and efficiently, but it can also present
dangerous  traps for the unwary - including otherwise sophisticated business
managers - who are not familiar with how ADR works.

  • Mediation. Mediation is a process by which opposing parties select a
    third party to assist the parties in negotiating their own solution.
    Mediators may or may not be attorneys, and sometimes are most
    effective when they are not, and instead have special skills or
    knowledge of the kind of issue the parties are involved in. Mediators
    may offer ideas for settlements, but do not decide which is "best" or
    make a binding decision for the parties. Mediators do not function as a
    judge. When mediation results in an agreement, it should be written
    down and signed by the parties in a means sufficient to make it a legally
    enforceable contract. The benefit of mediation is that resulting
    agreements are those of the parties; its major disadvantage is that if
    there is no negotiated resolution, the dispute continues. Mediation is,
    under the laws of most states, confidential.

  • Arbitration. Arbitration leads to final decisions, which may be binding or
    advisory, depending on the agreement of the parties. Disputes are
    presented to arbitrators, often a single or "sole" arbitrator and
    sometimes panels, which are often (but not always) composed of three
    members ("tripartite arbitration"). Arbitrators are generally selected by
    the parties or by an organization that manages arbitrations that the
    parties have agreed on, and involve a process of providing information
    to arbitrators under rules either of the arbitration organization the parties
    have selected or rules the parties themselves have agreed on; in some
    cases, arbitrators will set their own rules. Usually, these rules, however
    created, provide fewer rights to parties than court rules in litigation, and
    almost always prohibit jury trials.  Increasingly, arbitration agreements
    are found in "form contracts" on a "take it or leave it" basis, and can
    require inconvenient hearing locations for many parties. Due to the
    increasing use of attorneys in arbitration, arbitration is also becoming
    more expensive, complex and time-consuming, and can appear to be
    "private litigation" similar to court litigation, except with a privately
    selected "judge".

  • Mini-Trials and Case Evaluation. To facilitate settlement of cases,
    some parties (often with encouragement from a court in which their
    dispute is pending) prepare a short trial format, with written
    submissions of what trial evidence will show, and with relatively short
    statements of principal witnesses, before a privately selected "judge"
    (usually an attorney) and/or a privately picked "jury". Mini-trials then
    result in an advisory "verdict" which gives the parties a firm idea of how
    their case will be perceived in a real trial, and often helps settle or
    simplify cases. "Case evaluation" is similar, but generally involves
    purely written submissions to one or more Case Evaluators, with oral
    presentations by attorneys, with a settlement recommendation issued
    afterwards. In some court systems, there may be penalties (such as
    attorneys fees) imposed on parties who reject a case evaluation
    decision unless they receive a more favorable decision at trial.
RUSS E. BOLTZ, PC
Laguna Beach, California