Alternative Dispute Resolution (ADR), is a cost-effective, efficient way to solve settlements and conflicts outside of court. Taking disputes through the traditional litigation system can be a stressful, costly, time-consuming ordeal that often ends in a “winner-take-all” result. With ADR, all parties involved have control in negotiating the outcomes, which is a more diplomatic approach to dispute resolution.
Through ADR, opposing parties can form creative solutions to solve their disputes. Continue reading to learn more about how ADR works, and if it is the right conflict resolution method for you.
Mediation vs. Arbitration
There are two main types of ADR: arbitration and mediation. In arbitration, a neutral third party takes in the evidence, hears the arguments of each party, then decides the outcome of the case. Through the mediation process, a professional attorney uses dispute resolution techniques to help the parties negotiate their own resolution – empowering the participants to resolve the conflict in a structured way. Anderson Hunter Law specializes in the mediation process.
In most mediations, there has been a previous lawsuit or preliminary litigation between parties that has occurred. After each party has exchanged information, staked their legal positions, and feel like there’s an opportunity to pursue a negotiated resolution, a trained mediator can convene the mediation process.
During the convening stage, the mediator speaks with the lawyers representing each party to learn the basic nature of the dispute and assesses if the parties are at a point where mediation would be a beneficial way to resolve their conflict. If both parties are prepared to negotiate, the mediation gets scheduled at the offices of the mediator, or at the office of an attorney involved. Prior to the day of the mediation the lawyers for each party submit a mediation memorandum or brief that outlines their respective positions on the issues that are in dispute framed in the best possible light for their clients.
Additionally, each party should submit a confidential letter to the mediator where they outline the weaknesses of their case, and identify what the opposing party may point out as weaknesses of their case. This is to help the mediator understand the strengths and weaknesses of each side’s argument, and help drive a more effective solution by identifying areas of compromise.
Day of Mediation
Mediations are typically scheduled for a half or full workday, beginning with the mediator meeting with each party separately to get to know those involved, for each side to understand the philosophy of the mediator, and to hear the stories from each party that led them to the dispute. This helps each side build a sense of genuine trust with the mediator.
From here, the mediator will go back and forth between separate rooms to listening to each party, and encouraging them to make offers and counteroffers that will bring both sides closer to reaching an agreement.
Once an agreement has been reached, the attorneys involved will draft a dispute resolution agreement called the Memorandum of Settlement. This document outlines the essential terms of the settlement and is legally binding. On some occasions, cases aren’t settled on the day of mediation. There are situations where a point of agreement has been reached, and each party has to resolve other loose ends before settling the conflict. Ultimately, the mediator’s job is to see the process through until a signed settlement document has been obtained.
If you are seeking a solution to a dispute and are interested in learning more about the mediation process, a consultation is a great place to start. Additionally, here are some frequently asked questions that can help you determine if mediation may be right for you.