Alternative Dispute Resolution?
(And the advantage we can provide.)
Anyone involved in a conflict needs to be aware of alternative dispute
resolution, or ADR. Litigation in the real world
is no cakewalk. Unlike the stereotypical personal injury or malpractice
lawsuit thats portrayed in the media, the typical litigant
is not someone who wins the lottery every time he goes to court.
The concept of a runaway jury system that rewards unwitting or undeserving
plaintiffs is a flat-out myth. Juries and judges are often unable
or unwilling to grasp the complexities that are often presented
by what one might think is the simplest of suits. In sum, litigation
in the real world can be very expensive and unpredictable, and thus
financially and emotionally stressful.
To minimize this stress, ADR should be considered. There are
three generally recognized forms of ADR: negotiation, arbitration,
and mediation. Each form may have certain advantages and disadvantages
depending on the particular case. Importantly, no form of ADR is
mutually exclusive. Before litigating, it is not uncommon for parties
to a dispute to try negotiation, mediation, and non-binding arbitration,
or combinations thereof. The following is a brief description of
the three major forms of ADR.
Negotiation means what it says. Parties to a dispute attempt to
resolve it informally through direct discussions with each other.
They may do it face to face. Or, they may do it through agents and/or
attorneys. The problem with negotiation is that parties (and even
their attorneys) will often be so emotionally involved in a case
that they reach an impasse. It is very common for a party to have
difficulty putting him or herself in the shoes of the
other party. Plus, the average person who is either unschooled in
the law or who doesnt grasp all of the facts related to the
dispute will often take a position that might make sense to him
or her but that in the eyes of the law is not necessarily
valid. Sadly, even attorneys often fall into this trap because they
may not fully appreciate all of the facts related to the particular
case or because they do not understand the often complex rules of
law that apply. The inevitable complexity and lack of clarity of
the law is often the cause of these impasses.
Mediation is a process in which a trained neutral person, a "mediator,"
helps parties in a dispute speak for themselves and make their own
decisions. More often than not the parties to a mediation will also
be represented or assisted by attorneys. Agreements made in mediation
have to be made by the participants, and are not imposed by the
mediator. If the parties do not reach an agreement or develop a
solution that works for everyone, they can always have their case
handled by the court or resolved in some other way. Mediators
will not make decisions for the parties. But, they may recommend
means of ultimately resolving disputes. Through pointing out
the weaknesses and strengths of the positions of each party, a good
mediator will give the parties a reality check so that
they can obtain a broader perspective on their case that they may
not have appreciated beforehand.
If the parties do not sign a written agreement in mediation, and
decide to take their dispute to court, neither the mediator nor
the participants can testify in court about what happened during
the mediation. This encourages parties to be frank and honest in
their attempts to resolve their cases. Mediation can save
a lot of time, money and aggravation. If a relatively inexpensive
mediation procedure has a reasonable chance of avoiding onerous
litigation, then under a cost-benefit analysis mediation is virtually
always worth trying.
Importantly, mediation provides an opportunity for parties to express
whats important to them and to hear other parties perspectives.
Mediation may help a party to figure out how to get his or her needs
and the other person's needs met by reaching creative win-win
solutions that work for everyone. Mediation can also help
protect people'sprivacy since, unlike courtroom proceedings which
are open to the public, mediation is a confidential process.
Arbitration is a private and informal adjudicatory process similar
to a court trial, but often with fewer of the formalities and expenses
associated with courtroom litigation.
It is not without controversy, however.
In a binding arbitration process, the Arbitrator makes a decision
that is legally binding and enforceable upon the parties. Even though
the arbitration hearing is much less formal in procedure than a
court trial, each party still has the right to present proofs and
arguments as in a court of law. In arbitration the disputants do
give up the power to create their own solution. They assign
the resolution of their problem to an arbitrator (or a panel of
Arbitration can help protect parties privacy since, like mediation,
it is generally a confidential process.
biggest advantage to arbitration is also its biggest disadvantage.
An arbitrator's or a panel's decision is very difficult to have
reviewed or to appeal. While this might result in a more streamlined
it can also result in errors not being subject to correction.
A big concern with arbitration is the fact that the discovery procedures
available to litigants are not usually available to disputants in
an arbitration. This can be a very serious consideration in complex
cases where conducting court-mandated depositions and securing document
production and interrogatory responses may be important to one side
or the other.
concern is that the cost of paying both a lawyer and an arbitrator
might not make economic sense where the cost-savings over, say,
a jury trial are not presented. A dispute in which the arbitrator's
fees exceeds the value of the subject of the litigation just doesn't
favor the aggrieved party.
Finally, in certain types of disputes, arbitrators are becoming
notorious for favoring the parties who typically prepare the contracts
that contain arbitration clauses--such as in the domain of consumer
goods and services or transactions where one party may not be very
sophisticated or is at a bargaining disadvantage.
this regard, see a copy of a published
letter to the editor in a recent edition of the Fulton County
Many courts offer what is called non-binding arbitration.
Typically this involves an arbitration hearing in which the parties
are allowed to try their cases as they see fit. The arbitrator(s)
will render a decision. If each party agrees with the decision,
then the arbitration award will become final and therefore dispositive
of the dispute. However, if just one party disagrees with the award
he or she can appeal the award and go to court and have a formal
trial. The arbitration award will not be enforced. But, in light
of the arbitration award, the parties will often have a pretty good
idea of how a formal trial might end up for them.
Long Distance ADR
A new dynamic is revolutionizing Alternative Dispute Resolution.
Its name is "Long Distance ADR" or "LDADR."
This is a technique by which new technology facilitates the pursuit
of ADR by persons for whom the costs and results of ADR were once
Because videoconferencing technology has reached such a high level
of quality and because videoconference studios are almost everywhere,
parties from every corner of the earth can now "meet"
virtually and at a fraction of the cost once associated with (1)
air travel, (2) lodging, and (3) time away from family, and work.
Informal resolution is easier to achieve because parties who are
separated geographically can now negotiate and mediate more easily
and more effectively.
A competent attorney can best inform the client of what might be
the best ADR procedure to incorporate into the clients overall
dispute resolution strategy before the client goes to court, if
indeed an ADR procedure is even worth pursuing. Sometimes it may
be cheaper and easier to just litigate a dispute because the time
and resources required for ADR might be comparable to those that
would be expended anyway in an actual trial, and the bias known
to be associated with certain areas of arbitration can be avoided.
A good attorney who is truly concerned with his or her clients
welfare will also attempt to give his or her clientin confidentialityan
objective assessment of the clients position. In
sum, it is wise to inform oneself of all available ADR options before
consulting with a competent attorney so that the client goes into
the initial interview able to ask the attorney the right questions
from an already more informed perspective.
© 2004-07 Richard S. Alembik, PC—
All Rights Reserved — No claim made to government works or
other copyrighted material.