Your Guide to – Alternative Dispute Resolution, or “ADR”
Because of how complex, expensive, and uncertain lawsuits can be, almost every case nowadays involves some form of alternative dispute resolution, or “ADR.” When I started practicing law nearly thirty years ago, most lawsuits were resolved in one of two ways: they were decided in court by a judge or jury, or the attorneys and their clients hammered out a settlement agreement that kept everyone out of court. Although many cases still go to trial, and others are still settled the “old fashioned” way, various forms of ADR have become highly effective and nearly universal methods for resolving these cases out of court.
One of the most popular and effective forms of ADR is mediation. Mediation is a confidential process where an independent person (a “mediator”) is hired to help the parties resolve the dispute. Mediators are often attorneys who are trained on mediation techniques. They may have expertise in the subject matter in dispute, and sometimes they are asked to help each side evaluate their case. However, mediators do not make decisions for the parties. Rather, they help the parties craft their own solution. Sometimes those solutions can be very creative and include outcomes that could never be achieved in court. If a dispute is resolved through mediation, the parties sign a mediated settlement agreement that details the settlement terms, ends the dispute, and allows the parties to avoid the risk and expense of a trial. If the case is not settled in mediation, the parties still have the option of going to court.
Another common form of ADR is arbitration. In arbitration, an independent person called an “arbitrator” considers the evidence and makes a decision that resolves the dispute out of court. Arbitration hearings are less formal than going to court, and an arbitrator will consider a wider range of evidence. After the hearing, the arbitrator issues a decision, often called an “award,” which is generally binding. Although arbitration can be faster and less expensive than going to court, parties who go through arbitration give up certain rights and protections that they would otherwise have in court. Successfully challenging an arbitrator’s award is extremely difficult, so in most cases, an arbitrator’s award is final and cannot be appealed.
Another important consideration is that nearly all forms of ADR, including mediation and arbitration, are only available when the parties agree to them. Therefore, unless the parties agree to ADR (or in the rare situation where it is required by law), their disputes will have to be resolved in court.
I hope you’re never involved in an actual or potential lawsuit. But if you are, know that there are alternatives to a trial. Mediation or arbitration may be better options, so give us call, and we’ll guide you through the process