The most common types of ADR for civil cases are neutral evaluation, mediation, arbitration, and settlement conferences. All of these are designed to resolve the dispute between the parties short of going to trial. Resolving a dispute short of trial using ADR provides both parties a much greater degree of positive control over the outcome of the dispute. It also lets them determine just how much they can accept to resolve the dispute rather than the uncertain imposition of a resolution by a Judge or a Jury. The goal of any settlement is to avoid the cost and stress of a trial and, as importantly, to ensure the matter remains resolved, allowing the parties to move on fully.
Whatever the source or subject of the litigation, for the parties, often, the process is affected by emotions that can result in irrational perceptions and positions. ADR’s goal is to bring this emotional value of a case as close to its practical value as possible to avoid what often can be unexpected and debilitating consequences that otherwise could have been avoided by going to trial.
Neutral Evaluation – A neutral evaluation is when a neutral third party considers the evidence and the parties’ respective positions. After consideration, the Neutral will disclose their case evaluation. This process can be highly beneficial as it allows for the parties to hear the opinion of a disinterested third party. Often it also serves as a reality check and can assist a lawyer who may be having difficulty convincing their client of weaknesses in their case. It may also reveal weaknesses that have not been considered or ignored.
Mediation – Mediation is generally voluntary, although it is mandated in some instances, such as Equitable distribution. In mediation, parties try to resolve their dispute with the assistance of a third-party neutral mediator. The mediator manages the discussion between the parties. So often in litigation, it is not what is being said but who is saying it and how it is being said that is important. The mediator provides a third party to communicate things in a manner that allows the parties to listen and consider them. The mediator attempts to get the parties to a resolution or to accept a resolution that they at least have a degree of control over before they place the matter in front of a Judge or Jury. Unlike an arbitrator, a mediator cannot impose a solution; they can, however, be an effective Devil’s Advocate while with each party convincing them to retain as much control over their case as possible and come to a resolution.
Arbitration – In an Arbitration, parties submit their claims to an Arbitrator. An Arbitrator is a neutral third party who the parties have selected. The Arbitrator hears the parties in a generally less formal procedure than a trial but more structured and formal than mediation. The Arbitrator acts as a Judge would in a bench trial making a decision which is then reduced to an Arbitrators Award and subsequently entered as an order of the Court. Arbitrators Awards can be as detailed as a formal order with findings of fact and conclusions of law or as brief as a judgment that finds the prevailing party is entitled to a monetary award in a set amount. Typically, Arbitration is binding.
Settlement Conference – Absent the formality of a trial, and much briefer, a settlement conference is usually conducted or overseen by a judge. It can be held in the judges’ chambers, remotely, or in a conference room. If parties are represented, their attorneys generally attend the conference. Much as in mediation, both parties provide the judge with an overview and background information regarding their case and respective positions. The judge will then meet with the parties separately and, as in mediation, relay offers and counter offers between the parties. The judge will generally provide their insight and make recommendations during this process. Like a mediator, the judge cannot force the parties to settle. Absent a settlement, the case continues toward trial.
Regardless of where you ultimately land on the dispute resolution spectrum, using ADR is designed to assist parties in resolving their dispute short of going through a trial’s emotional cost and financial expense. Even if the type of ADR utilized does not result in a settlement, the process is valuable and worthwhile as it provides both parties a view of their case/position from a neutral third party and reveals potential pitfalls as well as insights into how the other party is approaching and may litigate the case.