Alternative Dispute Resolution Guide
Alternative Dispute Resolution (ADR) takes various forms: Mediation, Arbitration, Collaborative practice. Each of these methods is designed to keep your matter out of the courtroom and in the hands of the parties to the case. Resolving your matter outside of the courtroom allows for more creative, more flexible outcomes. The idea behind methods of ADR is to provide an alternative to filing a lawsuit and going to court, which is the traditional method for resolving legal disputes. ADR alternatives were primarily designed to provide for a streamlined and cost-conscious option to deal with a legal issue. The appropriate method to resolve any given dispute can only be chosen after a careful assessment of the facts and circumstances of the case, including the interests of the parties, the nature of the dispute, and any statutory or policy restrictions governing the use of a particular dispute resolution process.
Mediation/ Arbitration/ Collaborative Practice
WHAT IS MEDIATION?
Mediation is simple; it is designed to help all participants and can be especially helpful for people who believe their differences are so great that they will never be able to agree. It’s also for those who agree on some issues, but need help coming to resolution on that “last matter” that continues to hold up the process. Mediators do not render decisions like a judge or arbitrator.
Both participants meet with a neutral mediator and work together to reach the best possible agreement of their dispute in a respectful and amicable way. The best agreement is one that meets the most important interests of all participants.
Mediation is a voluntary process that requires an agreement by both parties to participate. However, in some court cases, mediation is mandatory prior to proceeding through traditional litigation.
WHAT IS ARBITRATION?
Arbitration is a more formal process than mediation. In general, the arbitration process involves many of the same components as a courtroom trial. For example, evidence is presented, arguments are made, witnesses are called and questioned by the parties, and so forth. However, many of these facets are simplified or limited so as to make the process quicker than the typical courtroom trial. The process is governed by rules of arbitration which control the presentation of evidence and information to a neutral arbitrator. Following the required hearings, the arbitrator will usually deliver a ruling to the parties within a specific period of time. Depending on the type of arbitration, this ruling may be final, or there may be options to appeal.
The difference between arbitrators and judges is important. When someone files a case in court, neither they nor the defending party get any input into who the judge will be. Judges are typically assigned randomly to a case. However, with an arbitration, the parties often have some input into who will end up being their arbitrator.
Depending on the nature of the dispute, arbitration can be a voluntary process where both parties agree to submit their dispute to arbitration, or it can be mandatory as an adjunct to the traditional litigation process. Many courts have mandatory arbitration for claims below a certain value.
WHAT IS COLLABORATIVE PRACTICE?
Collaborative practice, also known as collaborative law, is a legal process primarily used in the family law context. It is a legal process enabling couples who have decided to separate or end their marriage to work with their lawyers and, on occasion, other family professionals to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both parties and their children without the underlying threat of litigation. The process allows parties to have a fair settlement. The voluntary process is initiated when the couple signs a contract (a “participation agreement”) binding each other to the process and disqualifying their respective lawyer’s right to represent either one in any future family-related litigation.
The Collaborative process can be used to facilitate a broad range of other family issues, including disputes between parents and the drawing up of pre and post-marital contracts. As the traditional method of drawing up pre-marital contracts is oppositional, many couples prefer to begin their married life with documents drawn up consensually and mutually.
The Collaborative dispute resolution process presents the opportunity for cost efficiencies as the matter is a slightly less formal process than formal litigation processes. Also, in the Collaborative process, parties often assign by agreement important tasks to specialist professionals without duplication, so that cost savings may be realized. These cost efficiencies, in addition to other potential benefits, have led parties in other contexts to explore the use of Collaborative law to resolve other types of disputes. All parties considering the Collaborative dispute resolution processes should be aware that the Collaborative process does not guarantee a resolution and should such process fail to produce a resolution, the formal litigation process may be necessary to achieve a resolution to the dispute regardless of their best intentions
The appropriate method to resolve any given dispute can only be chosen after a careful assessment of the facts and circumstances of the case, including the interests of the parties, the nature of the dispute, and any statutory or policy restrictions governing the use of a particular dispute resolution process. The lawyers at McKean Smith have the depth of experience to guide you through this assessment process and successfully represent your interests through whichever ADR process is best suited to your dispute.
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