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Alternative Dispute Resolution

Alternative dispute resolution (ADR) consists of various methods of resolving legal disputes in less formal, less expensive, and less time-consuming ways than full-blown litigation. ADR methods, like arbitration and mediation, are often more expedient than litigation, yet they offer many of the same advantages, not the least of which is producing a final and legal resolution of the conflict. If you are involved in a lawsuit, your attorney can advise you on whether ADR may be right for you.

Can ADR be Individualized to the Particular Parties and Their Dispute?

Although some ADR methods, like mediation and arbitration, are well established and frequently used, ADR has no fixed definition, and there are no limits to the methods that may be used to resolve a conflict. Clients, lawyers, and judges are continuously adapting ADR methods or devising new ones to meet the unique needs of particular legal disputes. Also, ADR is not always a total replacement for traditional litigation, but can be used in conjunction with litigation when the parties wish to explore other options while retaining the right to return to the traditional court processes at any time. The one requirement for making any of the available methods work is that the parties and their attorneys understand and agree to the same process.

All ADR processes motivate the parties and their lawyers to prepare for resolution of the conflict before them. As with traditional litigation, the parties have their day in "court," or a hearing in which they have the opportunity to present their perspectives and their ideas of a fair resolution. Possibly for the first time, the parties witness a capable presentation of the other side's case, and then have an opportunity to identify common interests and points of agreement, which can lead to mutually acceptable settlement options. Many people prefer ADR because they view it as a more creative process that is focused on problem solving, unlike litigation, which can foster an adversarial relationship.

ADR is most effective when both sides are in comparable bargaining positions (i.e., they are approximately equally sophisticated and financially situated), and when the parties respect each other and are relatively objective and open-minded. ADR may be preferable when time is of the essence; when an inexpensive resolution is desired, such as when the costs of litigation would exceed the amount at stake; or when confidentiality is important and publicity should be avoided, because the issues are sensitive and personal or could involve divulging trade secrets or competitive information.

In some states, courts have adopted rules that require lawyers to inform their clients of the alternative methods for resolving their conflicts. Clients must now decide how to proceed and choose the type of ADR that will be most effective in resolving their disputes. ADR decisions can best be made, however, with the advice and counsel of the parties' lawyers, whose enthusiastic participation is an essential element of any successful dispute resolution process.

What's are Specific Kinds of ADR?

Mediation is a very popular form of ADR. It involves intervention in a dispute or negotiation by an impartial and neutral third party who has no ultimate decision-making authority. The objective of the intervention is to assist the parties in reaching their own mutually acceptable resolution of the issues in dispute. A mediator makes procedural suggestions regarding how parties can reach agreement, and may also occasionally suggest some substantive options in order to encourage the parties to expand the range of possible resolutions under consideration. A mediator usually works with the parties together, but he or she may also work with the parties individually to explore acceptable resolution options or to develop proposals that may move the parties closer to resolution.

Perhaps the other most widely used form of ADR is arbitration. In arbitration, a neutral decision maker-the arbitrator-reviews the evidence, hears arguments, and makes a decision to resolve the dispute. Often, a case that could take a week to try in court can be heard by an arbitrator in a matter of hours because evidence can be submitted in documentary form rather than through live testimony. Arbitration may be best for cases in which the parties want a decision without the expense of a trial, and it can be better than mediation when the parties have no relationship except for the dispute. Arbitration may not be a good idea, however, when the parties want to decide the outcome of their dispute themselves, in which case mediation may work better.

A third method, Early Neutral Evaluation (ENE), employs a neutral third party to provide an objective evaluation of the strengths and weaknesses of a case. The parties using ENE will usually make informal presentations to the neutral party to highlight their respective positions. This process may lead to a settlement or at least help the parties prepare to resolve the dispute later on. If the neutral evaluation does not resolve the dispute, the parties may go to court or try another form of ADR. Neutral evaluation, like mediation, can come early in the dispute and save time and money. It can be most effective when one or both parties have an unrealistic view of the dispute, when the only real issue is what the case is worth, or when there are technical or scientific questions to be worked out.

Minitrials, yet another option, involve a structured settlement process in which both parties present abbreviated summaries of their case before the other party and their representatives, who have the authority to settle the dispute. The summaries include specific information about the legal basis and merits of the case. The minitrial process generally follows more relaxed rules for discovery and case presentation than might be practiced in a court, and the parties usually agree on specific limited periods of time for presentations and arguments.

What are High-Low Agreements?

Parties may be reluctant to agree to some forms of ADR in which they give up their right to a trial by jury. As an incentive to agreeing to binding ADR, counsel in such cases may suggest that the parties pre-agree to the high-end and low-end limits of the potential damage awards. The guarantee of at least some minimal recovery can convince the plaintiff to enter into arbitration, and capping the damages affords the defendant at least some protection.

To determine the high-low range, defense counsel usually works with the defendant's insurance company to come up with the settlement value of the lawsuit. The low value typically approximates the settlement value minus defense costs. The plaintiff, too, often has significant input in determining the range. The parties in an arbitration can agree that the arbitrator may know that a high-low agreement is in place, but will not know the precise figures.

A high-low agreement often describes the arbitration procedure that will be employed. In order to save on expenses, for instance, the parties can agree that the arbitrator has the authority to decide disputes about how the arbitration will be conducted. Other cost-saving measures are to agree to witness testimony by written affidavit, rather than personal appearances and presentations by the parties directly to the arbitrator in a narrative manner.

Some commentators have noted that arbitrators are less swayed than juries by emotional arguments and tangential issues. Juries may be more sympathetic to plaintiffs than are arbitrators. The decision on whether to arbitrate must be a personal one based on all of the circumstances in the case, but if arbitration is chosen, the parties may want to consider a high-low agreement.

Conclusion

Although it may not be essential for a lawyer to directly participate in certain forms of ADR, like mediation, lawyers are still essential to the overall process. In most cases, an attorney should be consulted before a party commits to ADR in order to discuss the legal consequences of that commitment and possible settlement terms. ADR agreements can also be conditioned on approval by the parties' attorneys.

In selecting an attorney, it is important to determine whether he or she is "ADR-friendly." Prospective clients should ask questions such as whether the lawyer has ever worked with clients going through ADR, what the lawyer thought of the process, and whether it was successful for the clients. The way lawyers talk about their prior experiences with ADR often reveals whether they support and respect the process or think of it as a waste of time. If a lawyer boasts that "I told my client it wouldn't work, but he wouldn't listen," he is probably not a good choice. Fortunately, many lawyers view ADR with an understanding and respect for the process.

When you hire a lawyer, be sure to inquire about his or her training and experience in ADR and make sure that you have a clear understanding about how fees will be computed. Most attorneys charge their normal hourly rate to assist with ADR, but often far fewer hours are required to resolve a dispute using these less traditional methods, so the total fees may end up being less. More importantly, the overall emotional and financial toll of resolving the dispute can be far less by using an alterative dispute resolution procedure.

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Donald Briggs C. Donald Briggs, III Feb. 7, 1954 - Sept. 7, 2014 Your dedication and hard work continue...