Frequently Asked Questions

Alternative Dispute Resolution Overview

What is Alternative Dispute Resolution?

Alternative Dispute Resolution is also know as ADR. It could be one of a number of different tools used by someone appointed by parties to help them settle their dispute without having to go to court. Mediation is one of the more widely known forms of ADR. In addition, alternative dispute resolution methods include negotiations, settlement conferences, and arbitration.

What methods are available to settle my case?

The most common methods are settlement negotiations between the lawyers, and mediation. The Court will encourage you to use your best effort at settling your case. There may be an opportunity for a settlement conference with the trial Judge in advance of the trial date in order to help the settlement process along.

What are the Benefits of ADR?

ADR saves time and money. ADR also relieves court congestion and increases compliance with decisions rendered. ADR gives parties more flexibility and allows parties to avoid uncertainty of litigation. ADR helps preserve relationships and allows venting of feelings and opinions and helps people realistically assess their case.

How do I prepare for an ADR meeting?

You are expected to come to the meeting ready to talk about what you want to have included in any settlement and with the authority to negotiate the terms. If you do not have authority to settle the dispute yourself, then you must arrange to have the person who has this authority available by telephone during the entire ADR meeting. For ADR to succeed, the parties must be willing to work together to resolve the dispute. If you would prefer to have the court decide your case, you should tell the other parties as soon as possible.

Can what I say in ADR be later used in trial?

No. Before the ADR meeting begins, the parties sign a Confidentiality Agreement. This agreement says that the discussions and negotiations during the meeting are private. They cannot be brought up at a trial, if there is one. This encourages the parties to be open and candid during the meeting, which often increases the chances of reaching a settlement.

Don't most cases go to trial?

No. About 95% of all civil cases end by means of a settlement. A court trial is very expensive, stressful, and filled with much uncertainty. Most attorneys would rather settle their client's case then enter into a prolonged, expensive court battle. In addition, a court trial leaves no room for compromise, unlike ADR, a party either wins or loses. The prospect of spending a large amount of money on legal expenses, losing at trial, and walking away with nothing, serves as a viable incentive to attempt to settle a case prior to trial.

What is negotiation?

Negotiation is the process of two adversarial parties trying to reach an agreement on a dispute. If two parties are equally capable of presenting and defending and negotiating a situation, then it is wise for them to attempt direct negotiations. If one party is disadvantaged, or even feels disadvantaged, then they should have a third party (such as an attorney) represent them in the negotiations.

What is a settlement conference?

A Settlement Conference is the process by which an experienced legal professional (a judge or an attorney) hears a disputed issue(s) and then, in order to help the parties settle the dispute, offers his/her opinion as to what he/she thinks would be the outcome at a full-blown trial. The parties then take into consideration the thoughts of the presiding judge or attorney, and attempt to reach a settlement. The opinion of the Settlement judge is advisory and voluntary on the parties. However, the opinions are often a good gauge of the legal strengths and weaknesses of the party's cases.

Mediation

How much time do I need to schedule mediation?

A mediation session can be scheduled within a few days, if necessary.

How do we get to mediation?

Mediation can occur by agreement of the parties, by either party making a motion to the Court to order mediation, and in certain circumstances the Court can order mediation on its own will. There are costs involved in mediation, and the Court will usually direct how the parties will divide the payment of those expenses.

What is mediation?

Mediation is the process in which a neutral third party (mediator) assists the conflicting parties to come to an agreement between them. Mediators are usually highly skilled, and highly trained in the process of mediation.

The mediator`s role is to assist the negotiations by helping to establish the ground rules for the discussions and by promoting clear communication. The mediator will remain neutral and cannot make a decision for the parties.

Who starts first in Mediation?

At the beginning of the formal mediation, the mediator explains their role, the confidential nature of the proceedings, any ground rules (e.g., no namecalling), the benefits of mediation, and the procedural steps that will be followed (if any).

Who keeps things in control?

During the fact-gathering stage, the mediator will begin to define the issues, helping the parties to focus on the issues rather than their positions. At appropriate times the mediator will reinforce points of agreement and conduct reality checks whenever necessary. The mediator steers the parties away from past events and focuses them on what they want to see happen in the future.

What happens when an agreement is made in mediation?

Once a tentative agreement is reached, the mediator clarifies the terms of the agreement and makes sure all parties understand the terms of this agreement. One way this can be accomplished is by having the parties restate the agreement in their own words. The essence of the agreement is then prepared in writing, although the parties may want to have the agreement reviewed by an attorney before signing a formal agreement.

Is Mediation voluntary?

Mediation is usually voluntary although participation is sometimes mandated by contract or by the court. Settlement, however, can never be mandated. When settlement is reached, studies show that mediated agreements are more likely to be complied with than decisions imposed by arbitrators or judges. This success may be because the parties take an active role in the decision-making process.

Do I need an Attorney for Mediation?

Attorneys may or may not attend mediation sessions. If, however, one side is represented by counsel, the opposing side most certainly should be represented; nothing is served in mediation if one of the parties feels besieged.