Fall 2001, pg. 226. The nuts and bolts of ADR.

Maine Bar Journal

2001.

Fall 2001, pg. 226.

The nuts and bolts of ADR

Maine Bar Journal Fall 2001 The nuts and bolts of ADR Alternative dispute resolution for commercial cases

With the advent of Rule 16B in Maine's Superior Courts, practitioners and clients will be selecting Alternative Dispute Resolution processes for their cases. The rule provides for mediation, neutral evaluation, and non-binding arbitration. Understanding the character of the three processes, as well as possible variations and combinations of them, is no longer an option for competent attorneys.

This article describes appropriate ADR processes for commercial cases, discusses how to choose among them for a particular case, and suggests criteria for the selection of neutrals, whether mediators, neutral evaluators, or arbitrators.

ADR options for commercial cases

ADR professionals often speak in terms of four "primary" dispute resolution processes. Two of the four, negotiation and adjudication, are already imbedded in our legal system. Mediation is negotiation (communication for the purpose of persuasion) carried out with the assistance of a third-party neutral. Arbitration as traditionally practiced consists of a fairly informal presentation of proofs and arguments to a party-selected neutral who makes a binding decision.

As noted by Goldberg, Sander, and Rogers in Dispute Resolution: Negotiation, Mediation and Other Processes,(Fn1) hybrid processes have evolved from combining elements of these primary processes.(Fn2) In addition to mediation, two hybrid processes, Early Neutral Evaluation ("ENE") and Non-binding Arbitration, are options under Rule 16B. ENE involves an assessment of a case early in its history by an experienced neutral (often an attorney knowledgeable in the type of dispute) on the basis of brief presentations by both sides. If the case does not settle, the assessment is usually kept confidential and the evaluator may help the parties streamline the case for trial. Non-binding arbitration involves simplified informal hearings with a non-binding decision.

Two other hybrid processes that are particularly useful in commercial cases are Mediation/Arbitration ("Med/Arb") and Minitrials. Although these two processes are not specifically listed in the new rule, they are essentially combinations or variations on the three listed...