Adr: Explanations, Examples and Effective Use
| Publication year | 1989 |
| Pages | 843 |
| Citation | Vol. 05 No. 1989 Pg. 843 |
1989, May, Pg. 843. ADR: Explanations, Examples and Effective Use
Alternative Dispute Resolution ("ADR") procedures can often be used to resolve disputes faster, cheaper, more privately and more constructively than traditional litigation. This article explains a number of ADR procedures, including mediation, arbitration, med-arb, early neutral evaluation, special masters and neutral experts, mini-trials and summary jury trials. It also describes how these alternatives have been used in actual cases to assist disputants to achieve the effective resolution of disputes. These procedures are not cast in stone; rather, they can be modified and new ADR procedures can be created to address the needs of particular situations.
In addition, the use of one ADR procedure in a case does not preclude the subsequent use of another; more than one form of ADR can be used in a dispute in order to achieve resolution. For example, as explained below, mediation can be used in a dispute and, if it does not result in settlement, all unresolved issues can be decided in arbitration. Another tandem use of ADR is to mediate early in the litigation process and use a summary jury trial after discovery has been completed.
This article discusses ADR procedures in roughly chronological order, that is, in the order in which one might typically think of using the different processes. Like the forms of the procedures, this order is quite flexible and is intended merely as a guide. Most procedures can be instituted at different stages, prior to and even during litigation.
Of all the forms of ADR, the two most often confused by lawyers as well as laypersons are arbitration and mediation. The two processes are actually quite different. In binding arbitration, a neutral third party ("a neutral") hears the evidence, decides what the outcome should be, and imposes that decision on the parties. An arbitrator performs the same function as a judge, except in a private, more informal setting.
A mediator is also a neutral third party. In mediation, however, the parties themselves decide the outcome. The focus is on problem-solving rather than on determining who is right and who is wrong. A skilled mediator can diffuse hostility, gather and organize information, identify interests, elicit options, facilitate negotiation, "reality test" (ask questions to make sure the parties are being realistic) and structure effective communication. However, a mediator has no authority to impose a solution on the disputants.(fn1)
Mediation can be used voluntarily to resolve a dispute either before or after suit has been filed. It can also be "mandatory" under the Colorado Dispute Resolution Act,(fn2) but only in the sense that parties must make an effort to mediate, generally by attending one or two mediation sessions. Parties cannot
Mediation generally begins with an explanation of the mediation process by the mediator, followed by a commitment by the parties to try mediation. The mediation next moves to information gathering, venting of emotions, defining and prioritizing issues, identifying interests, developing and selecting options and drafting a written agreement. These functions do not necessarily occur in linear fashion. More often, the process moves back and forth through the various stages until an agreement (or impasse) is reached. How the mediation proceeds through the stages may range from shuttle diplomacy, where the parties never meet face to face, to mediations where the parties are never separated during the process. Most mediations fall somewhere in between, with varying amounts of time spent in joint sessions and in "caucuses," which are individual meetings between a party and the mediator.
Some mediators accept position papers from the parties. Most help parties explore the strengths and weaknesses in the parties' cases. Some take more of a directive role, whereas others are more subtle and are more apt to ask questions: "Have you thought about this? What might happen if. . .?" Some mediators may ask the parties for their bottom lines to assess the potential settlement range and to evaluate the prospects for settlement. Some neutrals routinely give an opinion as to settlement value. This practice transforms the process into a form of med-arb (a hybrid of mediation and arbitration, discussed below), rather than true mediation.
The goal in mediation is a voluntary agreement which is reasonably acceptable to all of the parties. Keys to reaching agreement include focusing on the parties' interests (the needs and desires which underlie their positions) and using a collaborative approach to develop an integrative ("win-win") solution.(fn4) Once signed, an agreement will be enforceable, either as a contract or as a court judgment.(fn5) Such enforcement is not usually necessary; at least one study has shown that disputants are almost twice as likely to comply with mediated agreements as with court-imposed judgments.(fn6)
Parties may consult with their attorneys at any stage of the mediation process, and they are particularly advised to have their attorneys review any written agreement before it is signed. The parties' attorneys may or may not participate in the mediation session itself, depending on the nature of the dispute, the mediator's preference, the parties' desires, and counsels' assessment of their clients' needs. For example, the parties' attorneys are rarely present during divorce mediation sessions but are usually present during mediation involving insurance companies.
Attorneys often prefer private mediation to a settlement conference because a judge generally does not have sufficient time to assist settlement negotiations, whereas a private mediator can take the time required to work out a lasting agreement. After participating in a mediation for two or more hours, the parties often have sufficient emotional investment in the process that they are psychologically moving toward settlement of the case. The act of scheduling a mediation, like setting a settlement conference, creates a deadline, which in turn creates motivation to settle. Otherwise, there may be no real deadline until trial.
Mediation has become well known as an effective process for settling divorce cases, but it can be tailored to almost any size or type of dispute.(fn7) The following example of divorce mediation illustrates why parties may choose mediation, how the process can assist the parties in working through and discarding some of the negative emotions connected with divorce, and how parties can be empowered through the mediation process. Additional examples illustrate the successful use of mediation in multi-party construction/property damage and environmental disputes.
In one divorce case, the parties had been involved in the adversary process for quite a while, and the financial and emotional costs were skyrocketing.(fn8) The parties decided they would be willing to compromise, if necessary, to avoid going to court and spending any more of their limited resources on lawyers.
The timing of the mediation was crucial; this case would not have been appropriate for mediation the year before, because the parties were initially very positional, angry, hurt and unable to compromise. By the time they decided to try mediation, both spouses were more separated from each other emotionally, and they had seen the damage their adversarial approach was doing to themselves and to their two young children. It was probably necessary and even helpful for this particular couple to have gone through the adversary process for a period of time because it gave them time to recover emotionally and to develop the motivation to resolve the marital breakup more constructively. Mediation presented a process which they could use to accomplish this resolution.
Both husband and wife continued to be represented by their attorneys and to consult with them throughout the mediation process. Although their lawyers did not disapprove of mediation and felt it was worthwhile to try it, the lawyers did not think the mediation would succeed.
The wife had no job-related training or education. Therefore, she wanted maintenance for several years. She began the mediation feeling very unem-powered, but after the husband made some concessions, she relaxed. The husband, who was earning a substantial income, decided he would rather pay the wife maintenance than incur additional attorneys' fees. In addition, they agreed the wife would keep their large house and all of their equity in the house. They also agreed that the wife was to have sole custody of the children. However, the husband would be involved somewhat in parental decision-making and would have a traditional visitation arrangement. As the mediation progressed, the parties became less adversarial and actually began joking occasionally and having fun in their discussions.
Much of the mediation was conducted in joint sessions. However, the mediator caucused many times to be certain the husband was comfortable with the agreement since it appeared that he was giving up quite a bit. In...
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