Alternative Dispute Resolution
Alternative dispute resolution refers to any methods used to resolve a dispute between parties without resorting to litigation. Alternative dispute resolution (“ADR”) may make use of a third party, such as a mediator, but it is not required. One of the benefits of alternative dispute resolution is that it reduces the load on an overburdened court system. In addition, it is often a less expensive solution for all parties, it has gained broad acceptance in the business and legal community. In fact, courts in some jurisdictions require parties to engage in some type of ADR before the matter can proceed to trial. To explore this concept, consider the following alternative dispute resolution definition.
Definition of Alternative Dispute Resolution
- The solving of a dispute by a method other than litigation.
6th Century B.C. Ancient Greek Society
Benefits of Alternative Dispute Resolution
Alternative Dispute Resolution has gained popularity in the U.S. legal system since the civil unrest of the 1960s. Besides the obvious benefits of alternative dispute resolution to the court system, ADR offers many advantages to the parties to any civil dispute. These include:
- Flexibility in scheduling, and suitability for disputes with multiple parties
- Less complex and less formal
- Parties ability to choose a neutral third party with expertise in the area of the dispute to mediate the dispute
- Ability to obtain a practical solution tailored to the needs of all parties
- Likelihood of a speedy settlement
- Confidentiality ensures the preservation of the parties’ reputations and relationships
Types of Alternative Dispute Resolution
The various types of alternative dispute resolution all have the goal of settling disputes without the need for a trial. Frequently the process is begun with the parties attempting to negotiate a resolution to the disagreement, whether through legal representatives, or directly. If no resolution is reached through negotiation, the parties may resort to other forms of ADR.
Mediation involves the use of a neutral third party, the “mediator,” who acts as a go-between while the parties go back and forth with their demands. The parties meet in a neutral location, often separate conference rooms at the office of a professional mediator, or some other location. Initially, the parties meet in one room to make brief presentations to the mediator, then the mediator goes back and forth between the parties’ rooms, sharing information and relaying offers and responses.
This helps eliminate any antagonistic comments or arguments that might arise should the parties attempt to communicate directly. The goal of the mediator is to guide the parties into an agreement that is, if not optimal to any party, acceptable to all parties. Mediation is frequently used in divorce settlement attempts, as it is common for a great deal of hostility to exist between the parties.
Binding and Non-Binding Arbitration
Arbitration is a more formal form of ADR, similar to a courtroom process in that it involves the presentation of facts, testimony, and evidence to a professional arbitrator. Arbitrators are legal professionals, usually attorneys or retired judges, qualified to make a determination based on the facts presented. In some jurisdictions, arbitrators are assigned to a case, in others the parties have at least some say in the choosing of the arbitrator.
Initially, the parties engage in a conference, either by conference call or in person at the office of the arbitrator, to provide an overview of the case. During this conference, any problematic issues regarding evidence are brought up in order to save time at the actual arbitration hearing. The actual hearing is held in a conference room, and each side is given time to present its case, similar to a court trial. While an arbitrator may render a decision immediately following the hearing, it is common for him or her to take some time to consider the matter, then issue a written decision.
Binding arbitration means the parties have waived their right to trial, accepting the decision of the arbitrator as final. In this case, even if one party is unhappy with the decision, it cannot be reviewed or reversed by a court, unless there has been fraud or abuse of power involved in the arbitration proceedings. A decision in non-binding arbitration may be rejected by either party, and a trial requested. It is not uncommon for non-binding arbitration to be used to assess the strengths and weaknesses of a party’s case with the unvoiced intent to continue to trial, though if a suitable resolution is met, it may be taken.
A settlement conference may be a meeting at which the parties and their legal representatives are present in which they discuss the issue and attempt to reach an agreement. In some jurisdictions, a court hearing called a settlement conference, is required before the matter may proceed to trial. In this type of settlement conference, the judge often strongly suggests the parties reach an agreement, sometimes sending them out of the courtroom to discuss settlement.
Alternative Dispute Resolution in Civil Law
There are many benefits of alternative dispute resolution in civil law. ADR can be used to resolve virtually any disagreement, including those between neighbors, business partners, and labor unions, as well as family law matters. ADR is useful in solving issues related to breach of contract, wage negotiations, property matters, and libel or slander.
Alternative Dispute Resolution in Criminal Law
While alternative dispute resolution in criminal law has been used for some time in other countries, it is a relatively new concept in the U.S. The use of plea bargaining may be considered a type of ADR, reducing the burden on the criminal justice system by allowing offenders to agree to a punishment that is agreeable to all. With a steep increase in white collar crime over the past few decades, the court system is making greater use of certain types of alternative dispute resolution. Because of the need to ensure the rights of an individual accused of a crime are protected, it is thought to be unlikely that the use of ADR in criminal matters will become as widely accepted as in civil matters.
Alternative Dispute Resolution in Family Law
In family law matters, from divorce to child custody, all parties are encouraged to reach their own solutions through the use of any of the types of alternative dispute resolution. By eliminating the need for a trial, the stress and expense for all parties can be greatly reduced. Settlement conferences and mediation are common methods used to reach an agreement as to the division of marital property and debt, and such an agreement may include all issues, include those related to the children.
It is very common, however, for the issues of child custody and visitation, child support, and spousal support to be hot-button issues for which settlement requires the help of a professional. Many states require families embroiled in custody disputes to attend mediation to determine what is in the best interests of the children. This type of child custody mediator investigates the issues, interviews the children, and hosts a meeting between the parents for the purpose of mediating an agreement. Whether the parents come to an agreement, or the mediator prepares a recommended parenting plan, or custody and visitation order, the written document is presented to the court for approval.
Related Legal Terms and Issues
- Child Custody – The care, control, and maintenance of a child, often awarded by the court.
- Divorce – The legal termination of a marriage.
- Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
- Litigation – The process of taking legal action; the process of suing someone, or trying them for a criminal act.
- Libel – A written or pictorial statement that is defamatory in nature.
- Plea Bargain – An agreement made by an offender to plead guilty to a lesser charge, to receive a lesser sentence, for the purpose of avoiding a trial that will be costly for the state.
- Slander – False, spoken statement that damages a person’s reputation.