Alternatives to Litigation
Going through litigation to settle legal disputes is laborious, time consuming, and expensive. Most lawyers and their clients prefer to avoid the litigation process whenever possible. Alternative dispute resolution (ADR) is primarily practiced in the form of either mediation or arbitration, but can be any method of resolving disputes other than litigation. Other forms of ADR include early neutral evaluation, negotiation and conciliation. The court also prefers that litigation be avoided when possible, and in some cases it is mandatory to try some type of alternative.
Mediation is a structured method that disputing parties can use in order for each to express their view of the situation, and have a solution presented to them. After the mediator’s solution is presented, the parties can apply that solution if they both agree to it. Often, each will go over the terms of the agreement with their lawyer before signing it. It is not binding until it is signed by all disputing parties. It may also be rejected, at which time other options will be explored.
The mediation session starts with the mediator’s opening statement. Then each disputing party will present their opening statements. With everyone’s point of view presented, there is a joint discussion of individual issues involved in the dispute. After the discussion, the mediator meets with each party separately to discuss the merits and pitfalls of their case and will suggest possible adjustments. Once both sides have worked with the mediator, they are brought back together in order to negotiate further. The mediator then weighs in on both sides and comes up with a written agreement that may settle the case, if it is approved by the parties involved.
Of all ADR methods, arbitration is the one that most resembles court. The disputing parties present their side of the conflict, including calling forth witnesses and presenting evidence. Unlike many court cases, arbitration is conducted in private and is heard by a third party arbitrator or tribunal who will decide the case. Those involved in the case approve the arbitrator before proceedings, and there is an understanding that the decision made in arbitration is final. There is no appeal process. The sessions are scheduled more quickly than court dates, and the proceedings can take place whenever and wherever is most convenient for those involved.
In a neutral evaluation, the disputing parties meet with a panel of experts who are qualified to evaluate the issues in dispute. After reviewing those issues, the panel presents a non-binding report, which includes their opinions on these issues. These evaluations are often used as a way to diffuse an emotional situation, and allows each party involved to enter settlement negotiations with a clearer mindset.
Before evaluation begins, all parties should be in agreement when choosing who will be chosen as evaluators. These should be truly neutral parties who have nothing to gain or lose based on the decision that is made, and they must disclose any information that would reveal a potential bias in the case.
Negotiation works in legal matters, much the way it does in business. The parties get together and discuss a proposed agreement. During the deliberation they may agree with parts of the settlement, or offer reasonable alternatives.
Conciliation can be compared to mediation or arbitration but it is neither. It is much less formal, although it does involve working with a neutral third party, which the two sides must both approve. That person hears both sides of the issue, and works out a compromise, and presents it to those involved, in the form of a report. There is nothing binding or enforceable about the suggestions that are made. Those involved can choose to incorporate some, all, or none of the ideas presented into the final settlement.
A Lawyer’s Role in ADR
A good lawyer can help their clients find dispute resolution services, and support them as they go through the process. Even when the parties involved are negotiating amongst themselves, a lawyer’s presence can help balance the scales. One example might be a divorce case where a major issue in the marriage was that one spouse saw the other as being controlling and manipulative. He or she can also serve as the “first ears” before their client presents their case in mediation or arbitration. The lawyer can help their client be more assertive in stating their point of view.