If you can’t talk the talk, for sure you can’t walk the walk. Lawyers know that the majority of litigated cases settle rather than end by trial. Many people have misconceptions about using alternative dispute resolution (ADR) to end a case. How they talk about ADR exposes the misconceptions. Be sure to use the correct terms with clients, judges and opponents to avoid misunderstandings.
- Alternative dispute resolution, or ADR, refers to any method used in place of a full-blown court trial. Arbitration and mediation are the most common types of formal ADR, but not the only ones. Many people conflate arbitration and mediation.
- Arbitration is a private adversarial proceeding where parties have agreed to let a neutral person, the arbitrator, decide the case. Arbitration can be binding or nonbinding. Arbitration is typically less formal than a trial (conference room rather than courtroom), and evidence rules are usually relaxed. For example, reports may take the place of an expert’s testimony.
- Mediation is a meeting where a neutral person, the mediator, helps parties communicate to define and resolve the issues. Unlike in arbitration, the mediator makes no rulings. The parties control the outcome. They choose whether to settle or continue the dispute.
As a rule, it is incorrect to call the mediator an arbitrator and vice versa since the roles are so different. Arbitrators make rulings, mediators do not. Hybrid processes blur this line. In a med-arb, parties try to settle, but if they cannot, they go right into arbitration, usually in front of the same neutral. In an arb-med, the parties arbitrate, but the arbitrator puts a written decision in an envelope which is withheld from the parties. Having seen the case play out in an adversarial proceeding, parties can then try to mediate a settlement. If they are successful, the envelope is discarded. If they do not settle, the envelope contents are disclosed. The arbitrator’s decision then ends the case. When in doubt, call the person running the proceedings the “professional neutral.”
Other types of ADR include neutral evaluation, where a neutral person with subject-matter expertise reviews the strengths and weaknesses of each side’s case and offers an evaluation of likely court outcomes. Upon hearing the evaluator’s opinion, parties often choose to immediately mediate with the evaluator as mediator.
In a summary jury trial, each side presents a short version of the case to a jury. As with arbitration, parties can agree in advance on whether the result is binding or advisory
Some jurisdictions have formalized the ADR route by statute, rule or custom. Some courts require parties to go through a nonbinding process before they can get to trial. If you don’t know how to proceed, you can touch base with your bar association or an independent ADR center for guidance. A pre-mediation consultation is privileged, even if the mediation never happens. You don’t have to worry that something you divulge at this stage can be used in litigation later.
Some ADR providers are very expensive; others are entirely free or free up to a limited number of hours. Consult with your client about choosing the best ADR path, keeping in mind the nature of your case and what’s at stake.
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