ADR is an acronym for Alternative Dispute Resolution, which some practitioners have attempted to rename Appropriate Dispute Resolution. ADR collectively refers to a number of different processes that serve different functions and have very different effects. I will briefly describe below the ADR processes that I conduct in my practice. Feel free to contact me with any questions you may have.
During a mediation session, a neutral third party meets with disputants and their lawyers to assist them in reaching a resolution. The neutral mediator acts as a catalyst helping the parties to develop and present their own proposals and making nonbinding suggestions on how to resolve the dispute. The mediation process permits the participants to come to an agreement that meets their needs and offers the possibility of creative and flexible solutions that cannot be achieved in litigation. The benefits are immediate and tangible: coming to a resolution frees the parties to move to more productive pursuits in their lives and may permit a beneficial relationship to continue between them.
Mediation often arises when a lawsuit has been or soon will be filed. Mediation is a quick, efficient, inexpensive, and confidential procedure which is without risk to the parties. By contrast, the alternative of litigation is a time-consuming, expensive, public, and occasionally capricious system. Resolutions are imposed on the parties and are confined by the strictures of the legal framework of the dispute. All too often, even in the relatively rare instance when a case proceeds to trial and verdict, both parties would have been better off if a negotiated resolution had been reached long before. The courts recognize the limitations of and strains on the judicial system, which make it difficult for a case to get the attention the parties would like. In response, California and other states have expanded the encouragement and protection of the mediation process by enacting statutes establishing the confidentiality of mediation and requiring mediation in many cases as a matter of court rule or practice.
The mediation process is very different from litigation. It is conciliatory rather than adversarial. The parties, without forgetting their disagreements, work together on possible solutions. These solutions can respond to needs other than simply money and can include agreements beyond anything a lawsuit can provide. During a mediation, parties come to understand better the other side’s position. While the confrontation of litigation often leads parties to demonize an opponent, mediation allows each side to educate and listen to the other. Ultimately, mediation presents the parties with a choice between a possible resolution and a continuation of the litigation, between a focus on the future and a focus on the past.
In a typical mediation, the parties, the attorneys and the mediator meet together. The mediator presents an introductory statement describing the process and the ground rules. Usually the mediator will have reviewed statements about the case written by the lawyers and/or talked to the lawyers before the meeting so that he or she can plan how best to approach the process. After the introductory remarks, each side makes an uninterrupted presentation of its view of the dispute and of the various issues involved. This can reflect both the legal posture of the case as well as issues outside the scope of a lawsuit which can nonetheless be crucial to forging an agreement.
After all sides have presented their point of view, there is a further exchange of information about the merits of the dispute and its possible resolution. This can be either in a joint session with everyone present or in private caucuses with one side meeting with the mediator separately. These separate caucuses allow the parties to discuss private or confidential issues with the mediator without the other side learning of them. This process continues, either with the mediator shuttling between the disputants or in joint session, or a combination of the two, until an agreement is reached, at which time the parties gather together to memorialize their agreement.
An agreement reached through this process is binding like a contract. Enforcement of such agreements is usually less contentious and time consuming than results imposed by courts because the parties have accepted the agreement voluntarily and are not looking to obstruct or overturn on appeal a result with which they disagree.
If the mediation does not lead to a mutually acceptable agreement, the parties are always free to pursue the alternatives, including litigation, without being in any worse position. Even where the parties do not reach a settlement immediately, often they benefit from a more focused and less contentious prosecution and defense of the case thereafter, where the parties save money and time because the issues are narrowed and discovery is geared to obtaining the information most crucial to the dispute. There is also the potential that a mediation lays the groundwork for a fair and intelligent resolution to be negotiated later.
Participants in mediation most appreciate that they maintain control over the result. The mediator has no power to force the parties to do anything or make any binding decision over their case. Information is disclosed in confidence and is not discoverable or otherwise useable in the litigation. A privately retained mediator is independent of the courts and has an obligation not to disclose any confidential material to anyone outside the mediation, including the court. This allows a great deal of flexibility in catering a mediation to the needs of a particular case.
For example, although experts are not decisive in many cases, in those cases in which experts are crucial a mediation can be structured to allow experts to present their point of view to one another while protecting against the risk that the lawyers will use the process for inappropriate discovery or other litigation advantage. Experts are often collaborative by nature and working together can help the parties understand the technical issues better. Even if the experts do not ultimately agree, their discussion can lead to a narrowing of issues that becomes a foundation for a mutually acceptable result. There are many other possible approaches to the mediation of unusual cases, just as mediation offers an unlimited number of possible solutions to a given dispute.
Mediation is fast becoming the preferred method for resolving commercial disputes both before and after cases are filed. Responsible business people have learned that mediation is faster, cheaper, more flexible, and leads to better results than litigation. Disputes inevitably arise between partners, employers and employees, parties to transactions, insurers and insureds, etc. Americans are learning that mediation is the most direct method for settling a vast array of types of controversies. By allowing the parties themselves to participate directly in developing a resolution, mediation often proves far more satisfying than the alternative.
Unlike mediation and most other ADR processes, in an arbitration the neutral renders a decision on the dispute. The decision can be binding or nonbinding depending on the circumstances. Many contracts require disputes to be resolved by binding arbitration in which the decision of the arbitrator determines the dispute. Such arbitration decisions can only be overturned in very limited circumstances. By contrast, parties may choose or may be required by courts to use nonbinding arbitration before fully litigating their cases in the courts. In these situations, usually the decision of the arbitrator may be rejected or accepted by the parties, and if it is rejected the decision is not admissible and the right to trial is preserved.
Arbitration has certain advantages over the courts that makes it attractive to parties. It is more informal and flexible, is less expensive and time-consuming, and often allows the parties to select the decisionmaker. Nonetheless, evidence is presented openly with the right to subpoena and present the testimony of witnesses under oath subject to a full cross-examination, all appropriate evidence may be introduced for the arbitrator’s consideration, and a formal decision may be prepared if the parties wish it. Although less formal than a court trial, and with no right to a jury, I believe my duty as an arbitrator is to assure that all parties have a full and fair opportunity to present their case and for me to consider it in an unbiased, fair and thorough manner.
The goal of neutral evaluation is to give the parties and counsel input from an experienced neutral on the merits of a dispute, i.e. what is likely to happen if the case were to be litigated, in a confidential and cooperative setting. To that end, the neutral evaluator listens to presentations by the lawyers and the clients, considers summaries of the evidence, and assesses the legal contentions. Unlike mediation, the neutral does not meet separately with the parties during this process but conducts a joint session so that all the participants hear all the of the material that the neutral considers. The neutral then prepares an informal opinion.
The neutral evaluation process allows the parties to hear an overview of the case which identifies points of agreement, key legal and factual issues of disagreement, and areas of strength or weakness in one another’s cases. This occurs in a confidential setting and often early enough in a case to help guide the parties to cost-saving settlement discussions, case management decisions, restructured discovery plans, and/or other ADR processes. The evaluator’s opinion is in no way binding, and often the parties will choose to have settlement discussions in the format of a mediation after the neutral prepares the evaluation. But the parties remain in control of whether to discuss settlement at all and, if so, what an appropriate settlement should be.
A special master is appointed by the Court to hear all or some portion of a case filed in that court. In California state courts, a special master is appointed either by agreement of the parties pursuant to Code of Civil Procedure §638 or by order the Court under certain circumstances permitted by Code of Civil Procedure §639. Special masters often hear discovery disputes and/or make case management decisions. Sometimes courts direct that special masters also act as mediators in a dispute, but this creates internal conflict in the role of the special master since by definition a mediator usually does not have decisionmaking authority over the parties while a special master does. Accordingly, I do not take on that dual role without first discussing the considerations with all counsel and determining that the parties consent and that the circumstances of the particular dispute warrant taking on those duties.
Various local courts use a variety of processes that may vary somewhat from those described above. Generally, these court programs can be modified to some degree to fit the circumstances of a particular dispute. For more detail, see my articles on the subject at Articles.
Please feel free to contact me with any questions about any of these subjects.