ADR - an introduction


ABOUT alternative dispute resolution


Why Use Mediation or Arbitration to Settle Your Case?

In short: TIME, STRESS and MONEY. Going to court, commonly called litigation, may decide the dispute, but the process can be time consuming, expensive and emotionally draining. Fees may escalate well beyond the original estimate, and the time it takes to reach a decision in our busy courts can be months or even years, sometimes putting all other plans on hold. Many times, relationships suffer from such pressure. 

Survey results of participants in mediation consistently demonstrate a high satisfaction rate with both the results of the mediation and with the process itself. In mediation, the resolution is determined by the parties and is not imposed on them. Settlements achieved in mediation are upheld easily by the parties, and the agreements reached help to foster future positive relationships. 

Readers unfamiliar with methods of Alternative Dispute Resolution will find the following short videos particularly useful to get an overview...


 

What are the different types of Alternative Dispute Resolution?
A majority of our attorneys are state certified mediators and arbitrators, though many also offer further specialized ADR services. 

  • Early Neutral Evaluation
    An early neutral evaluation (ENE) is used when one or both parties to a dispute seek the advice of an experienced individual, usually an attorney, concerning the strength of their cases. An objective evaluation by a knowledgeable outsider can sometimes move parties away from unrealistic positions, or at least provide them with more insight into their cases' strengths and weaknesses. Of course, the success of this technique depends upon the parties' faith in the fairness and objectivity of the neutral third-party, and their willingness to compromise.

  • Med-Arb
    A short-hand reference to the procedure mediation-arbitration. In med-arb, the parties agree to mediate with the understanding that any issues not settled through the mediation will be resolved by arbitration using the same individual to act both as mediator and arbitrator. However, that choice may have a chilling effect on full participation in the mediation portion. A party may not believe that the arbitrator will be able to discount unfavorable information learned in mediation when making the arbitration decision.

  • Facilitation 
    In the context of U.S. alternative dispute resolution (ADR) facilitation (or group facilitation) is generally considered to be a process in which a neutral person helps a group work together more effectively. Facilitators may work with small groups within an organization, or with representatives of different organizations who are working together in a collaborative or consensus-building process. The facilitator, in this context, may be internal or external (that is, brought in from an outside organization). Either way, he or she must be acceptable to all members of the group. Such facilitators are process leaders only -- they have no decision-making authority, nor do they contribute to the substance of the discussion. The facilitator's job is to lead the group process; to help them improve the way they communicate, examine and solve problems, and make decisions. Good facilitators can help groups stay on task, be more creative, efficient, and productive than they would be without such help.

  • Fact Finding
    Neutral fact-finding involves the use of a neutral third party who investigates/determines a disputed fact. This process is usually used for technical issues or in instances when significant factual issues are part of a larger dispute. Parties may negotiate to be bound or not bound by the fact-finding results. 

  • Discovery Referee
    Discovery Referees are most commonly used in complex matters where there is a disagreement between the parties relating to the scope and subject matter of discovery. These disputes can be very time consuming and emotional. To improve efficiency, the trial court has the jurisdiction to appoint a referee if the judge feels that it is warranted by the situation. The process may be "voluntary" or "involuntary" and is generally governed by the code of procedures by state courts. A reference is voluntary when the parties and their counsel agree that the appointment of a referee is necessary. Often they will also have agreed to who shall serve as the referee. The referee need not be a retired judge, but almost always is at least a lawyer due to the nature of the appointment and the knowledge necessary to fulfill those duties. A reference is involuntary when the judge independently determines that a referee is needed. The parties may still have the option of selecting their referee, but the judge will often appoint one if the parties can not agree on someone who is mutually acceptable.

  • Mini Trial (Mock Trial)  

    The minitrial, a development in ADR, is finding its greatest use in resolving large-scale disputes involving complex questions of mixed law and fact, such as product liability, massive construction, and antitrust cases. In a mini-trial, each party presents its case as in a regular trial, but with the notable difference that the case is "tried" by the parties themselves, and the presentations are dramatically abbreviated.

    In a minitrial, lawyers and experts present a condensed version of the case to top management of both parties. Often, a neutral adviser - sometimes an expert in the subject area - sits with management and conducts the hearing. After these presentations, top management representatives - by now more aware of the strengths and weaknesses of each side - try to negotiate a resolution of the problem. If they are unable to do so, they often ask for the neutral adviser's best guess as to the probable outcome of the case. They then resume negotiations.

    The key to the success of this approach is the presence of both sides' top officials and the exchange of information that takes place during the minitrial. Too often, prelitigation work has insulated top management from the true strengths and weaknesses of their cases. Mini-trial presentations allow them to see the dispute as it would appear to an outsider and set the stage for a cooperative settlement.

  • Special Master

    A Special Master, in law, is an authority appointed by a judge to make sure that judicial orders are actually followed. They are employed in complex civil actions where their expertise is needed to assist the court. Special Masters can also be established by the congress to assist with the admistrative claims against the government. Special Masters are appointed pursuant to Rule 53 of the Federal Rules of Civil Procedure. Special Masters are compensated for their work. The rate of compensation is set by the court and the parties pay the costs. In US, cases involving Special Masters often involve situations where it has been shown that governmental entities are violating civil rights. Reference of a case to a master shall be the exception and not the rule.

    The use of masters is "to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause, and not to displace the court." [La Buy v. Howes, 352 U.S. 249, 256 (U.S. 1957)].

 
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