3.5 Alternative Dispute Resolution

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

3.5 ALTERNATIVE DISPUTE RESOLUTION

3.501 Introduction.

There are a number of processes that can be used instead of litigation to resolve matters, whether they are in litigation, heading toward litigation, or other disputes that may be heard in forums such as legislatures or regulatory agencies.

There is an old saying, "let the forum fit the fuss." Lawyers need to analyze the problems presented by their clients and choose the best way to solve them. Alternative dispute resolution (ADR) processes often offer a more suitable means of resolving a particular dispute. Even though ADR represents an alternative, a strong connection to litigation remains in most ADR processes. Lawyers often judge settlement offers, wherever and however reached, against expected litigation results, costs, and risks. It is often said that most ADR processes work in the "shadow of the law." There is now an alternative for family law cases that does not truly operate "in the shadow of the law." The Uniform Collaborative Law Act, codified in 2001 at section 20-168 et seq. of the Virginia Code, specifically allows parties to contract with each other to resolve their dispute through the collaborative law process without the shadow of court hanging over them.

Of course, lawyers should have a thorough understanding of the litigation process and how their particular case would fare in a courtroom. At the same time, they should be equally conversant with ADR to give their clients options that may better suit their needs and interests.

3.502 Continuum of Dispute Resolution Options.

ADR is an umbrella term that refers generally to alternatives to court adjudication of disputes. The benefits vary according to the type of dispute presented and ADR process used. Significantly, ADR is often designed by the disputants themselves. Disputants can often agree on procedures that are quicker, cheaper, and better than litigation. As discussed below, procedures can be expedited, discovery can be limited, the need for expert testimony can be reduced, and creative remedies not available in court can be considered. Additional benefits may derive from the ability to protect privacy through confidentiality, usually provided directly or indirectly by agreement of the parties ¹⁸⁵² and often supported by law ¹⁸⁵³ and rules of evidence. ¹⁸⁵⁴

ADR options available to counsel are:

1. Negotiation. Consensual bargaining between disputants is the most widely used of all dispute resolution processes. Generally known as direct negotiation, either by the parties directly or through agents, it differs from other methods of dispute resolution by the absence of any third party such as a mediator, arbitrator, or judge. It is inherently the most voluntary, informal, unstructured, flexible, private, and inexpensive process of dispute resolution. Lawyers are well advised to understand both adversarial (positional) and interest-based (problem-solving) styles of negotiation. ¹⁸⁵⁵

2. Mediation. Mediation adds an impartial third party, a mediator, to facilitate the negotiation. Mediation is a process with generally recognized steps that can be tailored by the parties. Virginia, like most states, has laws providing for or regulating mediation. ¹⁸⁵⁶ Mediators are typically specially trained ¹⁸⁵⁷ to help the parties present their positions and interests and generate and evaluate their settlement options. There are various styles of mediation, and mediation training may vary. It is good practice for counsel to ask the mediator about his or her training and preferred style in order to prepare the client for the mediation process. One of the distinguishing features of mediation is that the impartial third party does not have the power to impose a solution on the parties. The desired result is a written agreement that resolves the dispute and is enforceable according to the laws of contract. ¹⁸⁵⁸

3. Collaboration. Collaboration is a process that has been used for more than 20 years, but it is less well known than some of the other ADR processes. The collaborative law process was developed by lawyers who recognized that litigation was an unsatisfactory process for resolving family issues. Although several of the ADR processes are more family friendly, such as mediation and negotiation, those processes allow participant family members to hold the possibility of litigation as a trump card. Further, when using other ADR processes, parties were not obligated to make their intentions known. After exhaustive work by the Virginia Collaborative Professionals, ¹⁸⁵⁹ the Virginia legislature enacted the Uniform Collaborative Law Act in 2021. ¹⁸⁶⁰ At this time, the Uniform Collaborative Law Act applies only to family law disputes.

4. Judicial Settlement Conference Program. Parties to any civil case in a Virginia circuit court may be referred to the Judicial Settlement Conference Program, in which retired circuit court judges who are trained in mediation and settlement conference skills will help them to resolve their dispute. ¹⁸⁶¹ The judges' services are free to the referred parties. This confidential process allows the parties to meet with a retired judge who is a neutral third party to explore options for settling their dispute. Case evaluation techniques may be used. Although the judge takes an active role in guiding the parties to a mutually satisfactory resolution, the ultimate decision is left to the parties. The parties may select a judge from the list of judges maintained by the Virginia Supreme Court but are asked to select a judge located within 100 miles of the settlement conference site, if possible. ¹⁸⁶²

5. Early Neutral Evaluation (ENE). ENE is a process offered by some courts to parties in the early stages of litigation or is something the parties can initiate themselves. Counsel typically make brief presentations to a neutral evaluator, usually a senior trial lawyer from the local bar, and receive a nonbinding assessment of the merits of their claims and defenses at the outset of litigation. With a neutral evaluator respected by both parties, this process can be very productive. ¹⁸⁶³

6. Mini-Trial. A mini-trial is a private presentation of evidence to a neutral expert hired by the parties to preside over an abbreviated nonbinding "trial," which can then be used by the parties in settlement discussions. The mini-trial is often presented before the CEOs of disputing companies to allow the parties to observe their opponent's evidence and receive feedback from the neutral expert on the strengths and weakness of their case.

7. Conciliation. Conciliation is an informal process that allows mediators to facilitate resolutions to disputes, often without bringing the parties together.

8. Online Dispute Resolution (ODR). ODR broadly describes forms of dispute resolution that incorporate the use of the Internet, email, and other forms of electronic media. Parties in an ODR setting may communicate solely through information technology or may use ODR techniques to supplement face-to-face negotiations. ¹⁸⁶⁴

9. Summary Jury Trial. A summary jury trial adapts some mini-trial concepts to cases that, if litigated to a conclusion, would be decided by a jury. Parties are provided a brief time to present evidence (sometimes live, sometimes summarized) before a jury whose members are drawn from the same population as prospective "real" jurors. The jurors have no authority to render a binding verdict. The advisory verdict encourages settlement by providing information to the parties of a probable outcome at a full-blown trial. ¹⁸⁶⁵

10. Arbitration. In voluntary ¹⁸⁶⁶ private, binding arbitration, ¹⁸⁶⁷ the disputing parties present their case to a neutral person or persons, an arbitrator, or "panel" of arbitrators, ¹⁸⁶⁸ whom they have selected by agreement and empowered to make a decision that will resolve the dispute. Both federal ¹⁸⁶⁹ and state ¹⁸⁷⁰ law provide for the enforcement of agreements to arbitrate. While arbitration yields a binding result, the result is subject to appellate review on only very limited grounds. ¹⁸⁷¹

11. Mediation-Arbitration ("Med-Arb"). "Med-Arb" is a structured blend of mediation and arbitration. The process begins as a mediation, which, if unsuccessful, proceeds promptly in accordance with the parties' prior agreement to arbitration, sometimes conducted by the same person who served as the mediator and sometimes conducted by another neutral person. Med-Arb offers an assurance that the dispute will be resolved even if the parties cannot reach agreement in mediation. When the mediator and the prospective arbitrator are the same person, there is a significant risk that the parties may be less candid in private meetings (caucuses) with the neutral as mediator. The fear is that potentially damaging information given in confidence will influence the adjudication of the case in the potential arbitration that may follow. A countervailing consideration is the efficiency of hiring the same person for both roles and potentially lower transaction costs of back-to-back scheduling.

12. Arbitration-Mediation ("Arb-Med"). "Arb-Med" is the flip side of Med-Arb and is less popular. By prior agreement of the parties, an arbitrator hears evidence and arguments and renders a nonbinding or advisory decision. The arbitrator then conducts a mediation where the parties have the opportunity to reach agreement using the advisory opinion as they see fit. In some versions of the process, the arbitrator does not announce an advisory decision, and the parties use the "cues" from the arbitrator to help reach an agreement.

13. Litigation. Litigation offers the least party control over the dispute resolution process. Litigation can be imposed "involuntarily" by one party initiating a lawsuit against the other. Verdicts are imposed on the parties by the judge or jury. Results are binding and subject to appeal. It is a public process with the least possibility of confidentiality and privacy, and it can be

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