Dispute resolution is, quite simply, the process of resolving a dispute between parties. Dispute resolution is also often referred to as “conflict resolution.” There are a number of processes that can be used to resolve conflicts, claims, and disputes.
Alternative dispute resolution, or ADR, refers to ways of addressing and settling disputes outside of court and its traditional, adversarial atmosphere. These processes can be used to solve any type of dispute, including but not limited to:
- Family Law Disputes: This includes child custody, divorce proceedings, and child support order modifications;
- Neighbor Disputes: This includes frequent noise ordinance violations and issues with Homeowners’ Associations;
- Workplace Disputes: Some examples of workplace or employment disputes include wage and hour disputes, and workplace harassment;
- Business Disputes: Examples include contract disputes and business debt;
- Housing Disputes: Examples include a landlord failing to maintain a habitable residence and housing discrimination;
- Personal Injury Disputes: Examples include medical malpractice cases and motor vehicle collision cases;
- Consumer Contract Disputes: This can include product liability and warranty claims; or
- Environmental Disputes: Examples include toxic waste dumping and air pollution.
Alternative dispute resolutions are often so effective that the American Bar Association recommends them as a first step, over immediately going to a court to order a resolution. Further, many courts actually require alternative dispute resolutions to be pursued before they will begin litigation, such as mediation and arbitration. Settling disputes outside of courts can save time and money, and often the processes are less formal and more flexible than those in the trial court.
Another advantage is the cooperation and creativity of the parties involved; due to the collaborative nature of ADR, each party may come to better understand the other’s position, and solutions that the court cannot legally impose may be implemented.
There are several types of alternative dispute resolution methods, and each process has its advantages. Some are court ordered, and not all require the presence of attorney. However, many parties still opt to have their attorney represent them at ADR proceedings. Some alternative dispute resolution methods are binding, meaning that the parties cannot ignore the ruling based on whether or not they agree with decision. Other ADR methods are non-binding, meaning the ruling can be ignored.
Some types of alternative dispute resolution are case evaluation, collaborative law, divorce coaching, and private judging. The two most common types are arbitration and mediation, both of which can be broken down further into different variations:
- Arbitration: Arbitration utilizes the help of a neutral third party, and is similar to an informal trial. After hearing each side, the third party issues a decision that the disputing parties may have agreed to be binding or non-binding. When binding, the decision can be enforced by a court and is considered final. Although the arbiter is an active facilitator and will pronounce a decision, the arbitration process is still less formal than an outright trial due to many of the rules of evidence not applying;
- Mediation: At first glance, mediation and arbitration are incredibly similar. One of the main differences is that a mediator, or impartial third party, cannot force the parties to agree and is not allowed to decide the outcome of the dispute. The mediator works with the parties to come to a solution that is made mutually, and the agreements are generally non-binding. Courts can mandate that mediation be required, but the process itself is still voluntary, therefore allowing the parties to refuse to come to an agreement. While in mediation, the parties maintain significant control over the process. Mediation is completely confidential and, since it is non-binding, parties retain the right to pursue litigation following the mediation process;
- Med-Arb: This form of ADR in one in which the arbiter starts as a mediator, but, should the mediation fail, the arbiter will impose a binding decision. Med-arb is a mixture of mediation and arbitration that pulls from the benefits of the two;
- Mini Trial: A mini trial is not so much a trial as it is a settlement process. Each party presents their highly summarized case. At the end of the mini trial, the representatives attempt to settle the issue. If they cannot, an impartial advisor can act as a mediator, or declare a non-binding opinion regarding the likely outcome of the issue going to trial. Mini trial is a unique ADR method, as it often comes after formal litigation, as opposed to before;
- Summary Jury Trial (SJT): An SJT is similar to a mini trial. However, the case is presented to a mock jury. The mock jury produces an advisory verdict. Additionally, it is order by the court rather than the parties. After the hearing the verdict, the court usually requires the parties to at least attempt to settle before litigation; or
- Negotiation: This form of ADR is often overlooked because of how obvious it is. In negotiation, there is no impartial third party to assist the parties in their negotiation, so the parties work together to come to a compromise. The parties may choose to be represented by their attorneys during negotiations.
You should nearly always consider ADR prior to initiating formal litigation. Although one of the major benefits of alternative dispute resolution is reduced costs and time, an arbitration attorney could be a worthwhile investment. One advantage is their ability to help you decide which form of ADR is right for your case. They can provide representation during ADR proceedings, but they can also provide consultations and strategy meetings beforehand.
In some cases, ADR may occur during litigation preparation, after parties have already secured their attorneys. And, some types of ADR require attorney presence. You should hire a knowledgeable and skilled attorney in the type of dispute you are facing.