"The courts of this country should not be the places where the resolution of disputes begin. They should be the places where disputes end- after alternative methods of resolving disputes have been considered and tried." Justice Sandra Day O'Connor
What is Alternative Dispute Resolution?
Alternative Dispute Resolution (ADR) refers to alternative ways for resolving disputes as opposed to going to trial. ADR offers a variety of techniques to assist disputants in arriving at resolutions which are more expeditious, less expensive and, consequently, far less draining from an emotional, psychological and economical point of view for the participants. The following methods of ADR are the most commonly known forms, but they are not the only ones available.
Mediation is a process in which a neutral person, agreeable to the disputing parties, acts as a facilitator to their negotiations and assists them in arriving at their own mutually-acceptable solution. Mediation may occur before the litigation has commenced or at any time before trial.
There are many different mediation techniques or styles but two of the most common are the facilitative and evaluative styles. The main difference between the two is that in the evaluative style the mediator is much more actively involved in getting the case settled. He/she gives suggestions on how to settle the dispute and will often evaluate the case for the parties. In a facilitative role the mediator will concentrate on getting the parties to communicate with each other in order to come up with their own solutions to their dispute. It is important to note that in practice many mediators blend the two styles and develop their own.
Arbitration is probably the most well known form of ADR. In arbitration a neutral third party or parties act(s) as an adjudicator or decision-maker on a case. This process is more informal than a normal trial. It is frequently held in the office of the arbitrator, generally takes only a couple of hours, and results in a decision that may be binding or non-binding.
A settlement conference is similar in many ways to evaluative mediation. A settlement conference is generally held by a judge shortly before a scheduled trial. The judge, as a neutral third party, will try to assist parties in settling their dispute before the trial. Settlement conferences can save litigants both time and money. Individuals who are involved in a lawsuit may request a settlement conference from a judge after a trial date has been set.
This procedure is directed at helping individuals involved in a dispute to narrow the issues over which they disagree to the ones that are really pertinent to their case. The parties and their attorneys meet with a neutral expert who guides them in assessing the merits of their case and then gives them a range of monetary damages that would probably be the decision if they went to trial. Neutral evaluation is helpful to people who have large, complex cases. The evaluator has expertise in the subject matter of the case and can act as a settlement facilitator if the parties choose. Individuals, lawyers and judges may suggest the use of a neutral evaluator as a means of moving the case toward settlement.