Patricia McCarthy, Esq.

A Passion for Justice and the Experience To Win

Fundamentals Of Alternative Dispute Resolution

The concept of alternative dispute resolution (ADR) essentially encompasses any method or technique intended to resolve a dispute between parties without the need for actual litigation. While courts are sometimes used to examine the validity of ADR processes, they are unlikely to overturn decisions reached through these methods, provided the participating parties entered into a valid contractual agreement submitting their dispute to ADR.

Broadly speaking, alternative dispute resolution can include a preliminary evaluation of the disagreement by a neutral party, negotiation talks, conciliation processes, mediation and perhaps arbitration. These steps have gained increasing popularity in recent years, largely as a result of overloaded court dockets, the massive expense of engaging in litigation and the extended time frames for achieving formal resolution through traditional channels. Growing numbers of jurisdictions are moving to ADR as a way to streamline caseloads, with such programs being mandatory in some areas and voluntary in others.

The two most typical types of ADR are mediation and arbitration. However, negotiation processes are almost always initiated in the earliest stages of ADR, as they allow the parties to retain a large amount of control and autonomy over the resolution of their disagreement. This is a feature many parties who might otherwise be forced into litigation find tremendously appealing.  And, a skilled attorney who has been retained by a client ALWAYS tries to negotiate a settlement.

Mediation is an informal brand of litigation alternative.

These processes are overseen by individuals who have received extensive training in the art of negotiation and who work to find common ground between the parties. Arbitration, by contrast, is more akin to a trial, though it is simplified in nature. Only limited discovery will be permitted in arbitration and the applicable rules of evidence are less complicated than in a conventional court proceeding. A three-person panel is convened to decide the outcome of a dispute submitted to arbitration, with one member being chosen by each side and the third selected by the other panelists.

As judicial schedules and litigation volumes show no sign of decreasing anytime in the near future, it seems quite likely that alternative dispute resolution will remain extremely popular among a wide range of parties who wish to avoid the expense, delay and inconvenience of traditional litigation.