Thesis on "Alternative Dispute Resolution"

Thesis 7 pages (2484 words) Sources: 1+

[EXCERPT] . . . .

ADR

Alternative Dispute Resolution

Through almost all of its history, the U.S. legal system has been an adversarial system, characterized by two parties entering into a legal dispute, with only one party emerging as the winner. The two sides have traditionally come together in conflict and the legal system has done little to repair underlying relationships or ensure satisfaction from both parties. Alternative dispute resolution (ADR) has changed the face of justice in America. With ADR, both parties can expect to find some sort of justice and satisfaction from the resolution to a legal dispute. This is due to the fact that ADR permits a broader range of solutions than those established by law. ADR permits the parties to get to the root of the problem, instead of simply focusing on monetary damages and monetary compensation. In addition, because the rules of ADR are frequently less stringent than the rules of litigation, ADR can be less expensive, in both time and money, than traditional litigation. Most importantly, especially in a family-law context, ADR permits and promotes the litigating parties to treat each other in a more amicable manner, with the goal of retaining relationships between the parties, if that is possible.

One of the interesting facets of ADR is that it can be accomplished in such a wide-variety of ways. While litigation is closely-bound by rules and regulations, ADR can occur in formal and informal settings. In fact, in its loosest sense, ADR refers to any solution to a legal problem that occurs before the parties come into court. Therefore, while the American legal system has traditionally been an adversarial one, it has also been one that has embraced ADR since its inception, because parties have always engaged in the informal negotiation process. As a result, it is accurate to describe the following techniques as forms of ADR: negotiation, neutral fact-finding, early neutral fact-finding, mediation, arbitration, summary jury trial, and mini-trials (Gumbiner, p.2). Collaborative law refers to people using a combination of the aforementioned items to come to an amicable settlement, and is not strictly defined in the law. The different types of ADR are further described as facilitative or evaluative and binding or nonbinding. (Gumbiner, p.2). Binding and non-binding are self-explanatory terms, and they dictate whether the parties are bound by the results of the ADR. Facilitative and evaluative describe the nature of the project; though all types of ADR are at least nominally facilitative, in truly facilitative forms of ADR, such as mediation, the neutral party is expected not to make judgments about the merits of either side's claims, but to assist the parties in coming to a mutually-beneficial agreement. Of course, most people cannot help but evaluate information when it is received, but a neutral in a facilitative process is supposed to refrain from sharing his or her evaluations with the parties involved.

Type of ADR Facilitative Evaluative Binding Voluntary Collaborative? Negotiation

Sometimes No Yes Early Neutral Evaluation Yes

Yes No Yes Mediation Yes No

No Sometimes Yes Arbitration No Yes Usually Sometimes No Summary Jury Trial No Yes No Sometimes Yes Mini-trial Yes No Yes

Table 1: Types of ADR

Negotiation is probably the most-familiar of all forms of ADR, and it should be since people engage in negotiation in their daily lives. In fact, negotiation is the primary form of ADR, though it may not be realized as such, since many people engage in successful negotiations thus preventing them from even considering the possibility of litigation.

Negotiations can occur between people who are attempting to solve a problem, or merely between people searching for a common ground, such as the negotiations between an employer and prospective employee. To have a successful negotiation, the parties need to realize that they have a conflict of interest, and seek to resolve that conflict through agreement and compromise rather than fighting. One of the most important elements of negotiation is that parties be open to the concept of give and take. Negotiation is part of almost every form of ADR, though it probably plays the largest role in mediation. Furthermore, while negotiation is a powerful tool, it has limits. "You should not expect success in negotiation unless you are able to make the other side an offer they find more attractive than their BATNA- their Best Alternative to a Negotiated Agreement. If that seems impossible, then negotiation doesn't make sense. Concentrate instead on improving your BATNA and perhaps changing theirs." (Fisher, Ury, and Patton, p.3-4).

Early neutral evaluation is when the parties make a presentation to a neutral that renders a non-binding opinion. The factfinder does not engage in any independent investigation, but relies upon the facts presented by the parties. Furthermore, the parties do not actually have to be involved in the process; a lawyer or other representative can present their evidence to a factfinder. Early neutral evaluation is an appropriate form of ADR when the facts are relatively clear, and when there is limited need for discovery. However, because early neutral evaluation is non-binding, it may be just a first step in the road towards settlement. The success of early neutral evaluation depends on each party's commitment to the process, and their perceptions regarding the evaluator's fairness and neutrality.

Mediation is another form of nonbinding ADR. Despite its nonbinding status, it has proven success with getting parties to reach voluntary and lasting settlements. As a result, the popularity of mediation is growing. Mediation is a facilitative process, in which a mediator, a professional who is trained in negotiation and facilitation, helps the parties move towards an agreement. The mediator must remain neutral and unbiased throughout the process. It is also important that each party in the mediation have a person with authority in the process; to mediate without someone who can make ultimate decisions about a case is generally not helpful. However, it is also not helpful to have professionals mediating on behalf of the parties; while parties in mediation are entitled to consult with their attorneys, the parties themselves must be present at the mediation and are the people who control the mediation. Frequently, in mediation, the mediator separates the parties after an initial session and goes back and forth between them as a negotiator. What each party says is confidential, and the mediator plays a role where he helps each party evaluate the strengths and weaknesses of its position, by asking probing questions that get each party thinking about their cases. While mediation can be very helpful, it is not appropriate in all circumstances. Mediation is not appropriate where one side is seeking to establish a legal precedent or when the parties' versions of events vary wildly. (Grumbiner, p.7). Furthermore, mediation may not be appropriate in some family law cases where there is a history of domestic violence, because of the real threat of intimidation by one party. (Buel).

Arbitration is an evaluative procedure presided over by at least one factfinder. Arbitrators act much like judges and are generally guided by the same rules of conduct as judges. Moreover, the proceedings in arbitration often follow basically the same rules of evidence as litigation. However, arbitration is generally less expensive than trial because discovery is limited, procedural requirements are relaxed, and the arbitrators do not generally require briefs. (Grumbiner, p.9). The American Arbitration Association is involved in many arbitrations, though it is possible for parties to have private arbitration as well. Arbitration, which is generally binding, can be part of a contract between parties, and the terms of the contract will determine who arbitrates the dispute and under what rules. Generally, arbitration is appropriate for "any dispute that requires an evaluative answer." (Grumbiner, p.9). However, whether a party chooses binding or nonbinding arbitration might depend on that parties' pre-arbitration assessment of its strengths or weaknesses, though it will generally be decided by the parties' contractual arbitration agreement. While arbitration is a successful process, the main drawback is that people feel that arbitrators take a rough approach to justice, which can be repugnant in a scenario when one party has clean hands.

Another method of ADR is the summary jury trial. The summary jury trial is a nonbinding trial in front of a jury. Rather than presenting witnesses the opposing parties, generally through their attorneys, will present arguments to the jury. The jury then reaches a verdict, with the goal of promoting settlement between the parties. A summary jury trial is not appropriate for every dispute. Instead, it is an appropriate tool when parties are involved in complex litigation and are headed for a jury trial. It can help both sides gain some perspective about the likelihood of a favorable outcome and encourage them to settle their claims. The problems with summary jury trials are that they are non-binding and both sides may be reluctant to share evidence, given that they may be headed into litigation with one another.

The final method of ADR is the mini-trial. The mini-trial combines elements of mediation with elements of the… READ MORE

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