Alternative Dispute Resolution (ADR)
Content provided by: Legal Recourse™ DAVID M. ALDEN, Attorney at Law 4440 Duckhorn Drive, Suite 420 Sacramento, California  95834 Telephone (916) 928-3738 Quick Links:	An Introduction to ADR: How You Can Use a Neutral to Make Deals and Resolve Disputes Without Going to Court
ADR Titles ADR Resources Legal.com Home Page Contents: Welcome Mediation Deal Making Arbitration A Better Way	by David Alden, Esq Copyright © 1998 Legal Recourse All rights reserved

Welcome to Legal.com's Alternative Dispute Resolution (ADR) area. This introduction will provide you with information about mediation and arbitration, along with a list of affordable book titles for people who would like to read further. We will talk about using a mediator to negotiate agreements not only to resolve disputes but also to make deals like business ventures, real estate sales and employment contracts possible. We will also talk about arbitration and how it differs from mediation.

Mediation

Mediation involves the use of a neutral person to help bring two or more parties together in agreement where emotional barriers may exist and guidance is needed in order to reach a workable solution. While it is commonly employed to help parties resolve a dispute that would otherwise go to trial in court, mediation can also be very helpful in moving contract negotiations along. The mediator (sometimes called "neutral" because of his or her neutral or unbiased position) is a person who is trained and experienced in mediation skills who will work with both parties and/or their attorneys, without representing either one as would an attorney, to achieve a mutually amicable resolution to the dispute.

Why Mediate? There are a number of reasons why people opt for mediation. The two most compelling reasons are time and cost. As most people are aware, litigating a case in court is both time consuming and costly. In fact, litigation is time consuming in two ways: Even though they may be represented by attorneys, litigation still requires an investment of time by the parties, whose days are frequently interrupted when they are called upon to answer questions, locate and copy documents, be evaluated by a doctor, testify at depositions and attend hearings in court; additionally, litigation frequently involves delays in getting the case to trial, requiring the parties to patiently wait months, if not years, for resolution of their case. And it still may not be over when the court finally decides their case, because one of the parties may appeal or the winning party may have trouble collecting damages awarded against the losing party. All the while, their costs and attorney's fees continue to mount.

Sometime the parties are ordered by the court to attempt to resolve their case through mediation, or by agreement if the dispute arises from a contractual relationship, and their contract contains a clause requiring that alternative dispute resolution methods be employed. More and more judicial officers are turning to ADR as a way of expediting cases through the courts. And more and more contracts specify that any dispute arising from the contract will be handled through ADR instead of litigation.

So the parties can save both time and money by opting for ADR instead of litigation. Additionally, they are able to retain control of their case when they mediate. This is because mediation is a voluntary undertaking. The mediator's role is not to decide the case. Instead, it is to help the parties reach an agreement together. And any agreement reached is done so voluntarily by the parties. If no agreement is reached, the parties leave the table with their dispute intact but unresolved. Because the process is voluntary, the mediator will not decide their case for them. This is what we mean when we say the parties retain control of their case. In contrast, when they go into court or to arbitration, a judge or arbitrator will decide the case and one or both parties might not be happy with the decision. So, in mediation, the parties retain control because their case is not settled unless each voluntarily agrees to the settlement. And it is up to the talent of the mediator to help them find a settlement that did not previously appear to be possible.

Selecting a Mediator. Once the parties have agreed to try mediation, their first step is to select the mediator. Mediators come from all backgrounds and disciplines. The person who you select may or may not be a lawyer; and may or may not have special knowledge of the subject area, although parties frequently prefer to hire someone who is familiar with the nature of their dispute. For example, a software developer who is disputing his contract with a software publisher might want to hire a mediator who is familiar with intellectual property rights in general and software development contracts in particular; a divorcing couple may want to hire a mediator who has a background in family counseling; and the parties to a case with complex legal issues might want a mediator who is also a lawyer. Further, some mediators are known to be more assertive in moving the parties toward a settlement, while others are more passive in their style, so the parties should select and agree upon a mediator who has the background that they want and the style they feel it will take to work with everyone who will be at the table. Most mediators provide a resume and cover letter that explains their background, prices and style so the parties can select among potential mediators for the one who is best suited to their needs.

The Mediation Process. Because different mediators employ differing styles, and because mediations take on their own personalities that are made up of the personalities of the parties and the nature of their dispute, it isn't possible to say exactly how any given mediation will proceed. Most offer an opportunity for each party to tell his or her story, and for the other party to listen and try to understand the dispute from his or her opponent's point of view. The mediator will likely take notes and ask questions to identify the issues that need to be resolved, and to understand what each party wants or needs in order to settle the dispute. The mediator may become creative in looking for ways in which each party can get all, or most, of what she wants or needs. By way of simple example, let's say that two people are fighting over an orange. Each insists that he needs the orange, so they agree to have a mutual friend help them decide what to do. By asking questions, the friend discovers that one of the people want the orange for its juice and other other wants its for its rind (to use in a recipe). By peeling the orange and giving the center to one and the rind to the other, each can have want they want from the orange. Most mediations will present more complex issues than the one used for this example, but it nicely illustrates the ideal outcome of a mediation.

At varying points during the mediation, the mediator may suggest a caucus. A caucus is where the mediator meets privately with each party, and agrees to tell the other party only those things that he is specifically permitted to repeat. Caucusing can frequently be used to separate the parties if tensions are building, and it can be employed by a talented mediator to move the parties past an impasse, one at a time, and ultimately closer to resolution of their dispute. While on the note of privacy and keeping things said in confidence, it should be pointed out that mediations are usually confidential in their entirety so that parties will be encouraged to candidly discuss the issues without fear that what they say will later be used as evidence against them. California's Evidence Code, in fact, does not permit things said during confidential mediation to later be used in court, but these kinds of rules vary from state to state and country to country, so you will want to check on the rules in your jurisdiction to know what to expect in the way of confidentiality.

At some point during the mediation, the mediator and parties will know if an agreement is close at hand, will require extra time to achieve, or is even possible. Based upon everyone's feelings, the mediation may conclude or be recessed at any time. If concluded satisfactorily, the parties may write down and sign the terms of their agreement on the spot, as a way of preventing one or both from changing their minds or demanding more from the other party later on. Or, the parties may be referred back to their lawyers to draft the final resolution. Usually custom and laws in the jurisdiction will determine how the mediation is wrapped up. Common among all mediations, however, is the voluntary nature of the process. Each party must agree to the settlement or the dispute is not settled by the mediation. If it is not settled, the parties remain free to pursue their arguments in other venues. They may have given up a day of their time, but not their entire case.

Arbitration

Arbitration is different from mediation in that the arbitrator will ultimately decide the case, so the parties lose control of their case just as they would by taking it to court. But it remains similar to mediation in that the parties will likely save money and get their case heard faster than they would if it went to trial. This is because arbitrators are frequently available on shorter notice than are judges and courtrooms in our overloaded judiciary. Because your case will be heard sooner rather than later, it must be presented with less notice so there will be less time for the attorneys to invest (and bill you for) in preparation.

The actual presentation of your case will be in a less formal setting than a courtroom, so things can move more quickly. There is no jury for the attorneys to impress, so no time is wasted selecting the jurors. The rules of evidence may be less restrictive in the arbitration setting, so each party will have a better opportunity to tell his whole story to the arbitrator without being interrupted by objections from the other side based upon technical rules.

Just like a mediation, the matters discussed in arbitration can be kept private. Your case won't become a matter of public record like it is when filed at the county courthouse, which is a public forum. The arbitrator is a private judge who you and your opponent will agree upon and select together, from a pool of available arbitrators whose knowledge, experience and styles will be made known to you. Unlike being in court, where your case is assigned to the next judge in rotation, you will be able to select an arbitrator who has experience working with the kind of case that yours presents.

But when the decision is in, it will be binding on you and your opponent. So the voluntary component of mediation is gone (although there is a hybrid between mediation and arbitration, known as non-binding arbitration, which is beyond the scope of this article). Also, there may be no appeal from the arbitrator's decision in your jurisdiction, depending upon the nature of your case and the laws where you live. So many arbitrations are truly binding and non-appealable.

Getting Help a Better Way

Whether your case can or must be mediated or arbitrated, alternative dispute resolution is here to stay. Our courts are overloaded and attorneys are expensive, so ADR is a way to get your case resolved sooner, rather than later, and for less money. The process is less intimidating for most participants because the surroundings are less formal than they are in a courtroom. Mediation gives the parties a chance to tell their respective stories and have a dry run at putting their case on without losing control of the final decision. Even though mediation is voluntary, many programs report an 80% settlement rate. Arbitration requires that you give up control over the final decision, but it is faster and less expensive than litigation. Your case can be heard in a couple of weeks, rather than a couple of years. In the United States and increasingly in other countries around the world, the conference rooms where ADR settlements are conducted are fast becoming the courtrooms of the future.

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