Alternative to What?
Alternative Dispute Resolution or “ADR” is traditionally thought of as an “alternative” to litigation: ways of resolving legal disputes that are generally considered to be simpler, quicker and less expensive. But with many states requiring some kind of ADR after a lawsuit has been filed as a way of attempting to settle cases before trial, ADR is quickly changing from “Alternative” Dispute Resolution to “Additive” Dispute Resolution. Instead of becoming an alternative to litigation, it has become an alternative to trial only. But this is not necessarily a bad thing, because while most people understand that they can file a lawsuit to assert their rights, few people understand whether they have a right to ADR methods or how to initiate them if they do.
The most recognizable ADR methods include mediation and arbitration, both of which can take many forms. The primary difference between the two is that mediation generally involves another neutral person (the mediator) whose primary job is to assist the party in negotiating a resolution to the conflict. The outcome of a mediation would be an agreed settlement between the parties. An arbitration is much more like a trial, with a neutral person or persons acting as a judge-like arbitrator. Arbitrations tend to be far less formal than trials, but the formality can vary drastically. An arbitration results in a decision by the arbitrator, much like a decision from the judge in a bench trial. The parties to a dispute generally have some control over selecting the mediator or arbitrators.
While mediation and arbitration are traditional ADR methods now used in conjunction with litigation, ADR can also be found elsewhere. Some modern community association governing documents are requiring some form of ADR to resolve neighbor or association-related disputes. We have also drafted Dispute Resolution Agreements containing various forms of ADR to resolve developer warranty claims on behalf of our clients without having to resort to litigation.
To learn more about ADR, please join Barker Martin’s Dan Zimberoff and Kappes Miller Management’s Walter Berninger as they present Mediation, Arbitration, Litigation, Huh? at WSCAI’s Chapter Luncheon on Tuesday, August 25. For more information and to register, please click here.