Alternative dispute resolution

What it is and how it could save you money

Alternative dispute resolution (ADR) encompasses a wide variety of practices and methods of tackling disagreements between people and/or entities. The essence of ADR is a commitment to trying to resolve conflicts out of court, without the oversight of a judge or jury.

Types of alternative dispute resolution

There are three main kinds of ADR being practiced in the legal field today:

• Mediation
• Arbitration
• Collaborative law

There is also a lesser-known fourth type of ADR that is used primarily in minority indigenous communities. It’s called a talking circle or something similar. Family, friends, and/or leaders of the community get together with a person who is causing trouble, or people who cannot get along, to help them learn more peaceful, respectful ways of interacting with each other and the world at large.

What all these methods of dispute resolution have in common is that they offer a kinder, gentler option for litigants or potential litigants, that is, a less formal, more laidback approach that focuses on practical solutions rather than punishment or a win/lose mentality. Because the participants feel that their beliefs and feelings are acknowledged and listened to, and that they are being consulted on and helping to make their own decisions, the results tend to be more satisfying and longer lasting for everyone concerned.

Mediation

Mediation can be court-sponsored or private. It involves two or more opposing parties (people or organizations) getting together in a room or rooms in a building with a third-party mediator. The building usually is not a courthouse. The mediator is trained to moderate the discussion and try to help the parties reach mutually beneficial outcomes, but not force anyone to take a position with which he or she is uncomfortable or could not accept long-term.

Court-sponsored mediation is usually free of charge, unless you fail to show up. Private mediation varies widely in cost from a few hundred to thousands of dollars.

Mediation may include opportunities for break-out sessions in which each party confers privately with the mediator and/or their counsel, if represented by one or more attorneys, and/or close family members or friends who have come along to support them through the process. There is no one right way to do mediation, but the overriding emphasis is always facilitating respectful, positive communications designed to get the parties to a full resolution of their dispute(s), or as close as possible on as many aspects as possible.

Arbitration

You may have heard the term binding arbitration or mandatory arbitration. In binding arbitration, whatever the arbitrator or arbiter decides has the force of a court order. Mandatory arbitration refers to a clause in the law or a contract in which the parties agree that if there is a dispute they will submit it to an arbitrator for resolution as a first step rather than going to court. This is a legal term and often is inserted in the fine print in contracts everyone is asked to sign or otherwise enter into with large corporations. This is one reason it is important to read the fine print.

Having arbitration as a required first step (or mediation, for that matter) is not necessarily bad. The majority of disputes are resolved this way, avoiding the much more time-consuming and costly route of a judicial proceeding. However, non-binding arbitration rulings can be appealed to a court of law.

Collaborative law

Collaborative law is the newest and perhaps most intriguing type of ADR. Based on a team concept, it focuses not on you or me, but simply we. Many kinds of professionals besides attorneys may participate in the process, such as mental health providers (typically called counselors or coaches), child-development specialists, financial experts, and any other team members the parties agree will be both beneficial and affordable.

One of the most interesting aspects of collaborative law is that the attorneys must sign an agreement that they will both withdraw from representation if the parties decide they want to take their dispute to court. This creates an incentive for the parties to stay engaged in the process until its logical conclusion so that they do not have to start all over, again explaining their situation and positions on each issue to new attorneys while simultaneously tackling the more adversarial and stressful court process.

Choosing the option that is right for you

The best option depends on what your needs are and whether the choice has already been made for you through a judge’s order or written contract. It also depends on whether you and the other party can play nice long enough to solve your problems without a judge.

For many people and situations, a less confrontational way to resolve disputes—one that respects the dignity of the players as human beings—almost always results in a better, more satisfying outcome.

So think about giving it a try. There are many attorneys who offer ADR services, including many who practice exclusively in ADR and many who are past judges. Some of them even have a bar-approved specialization certification in this area of law.

If alternative dispute resolution does not work

There is always the possibility that ADR might not work for you. But at least you could say you tried. Then you could still have an experienced family law attorney by your side throughout the court process.

The future of alternative dispute resolution

Traditionally, ADR has been used most commonly in family law, particularly divorces. But it is also becoming increasingly popular in other kinds of civil disputes. For obvious reasons, ADR still is not used to a great extent in criminal law because of the serious public-safety concerns and consequences or punishment goals in that area of law. Nevertheless, alternatives to traditional criminal court proceedings, such as deferred sentencing for completion of probation or drug rehab for nonviolent crimes, are starting to gain traction in criminal matters.

What is the future of ADR? The sky is the limit. Wherever the need for alternative dispute resolution presents itself, ADR will grow and expand to fill the demand.

Disclaimer: This legal guide provides general information, not legal advice that can be applied to any specific matter. It does not establish an attorney-client relationship.