Until recent years, clients' only legal recourse in resolving a controversy was either to attempt to settle the matter outside of a courtroom on their own or to file a lawsuit and let a judge settle dispute in a formal judicial hearing. However, in recent years, the movement toward resolving disputes by alternative methods outside the traditional court system has been sweeping the country. North Carolina has moved quickly to the forefront in Alternative Dispute Resolution (ADR) methods. These new methods vary in many ways from regular court procedures; nonetheless, they all offer creative and sometimes considerably simpler means of settling disputes, from civil lawsuits to domestic controversies, to less serious criminal matters and property disputes. Of course, whether on of the several alternative resolution methods is helpful in a particular case may more often than not only be decided by the parties and their legal counsel. In some states North Carolina being one of them, ADR is mandatory in certain cases. Once you understand the types of Alternative Dispute Resolution procedures that are available and the advantages of each, you can then determine if this alternative process is right for you. The purpose of this article is to provide an overview of the ADR various methods used in North Carolina and other states, and to explain the advantages of using ADR.
TYPES OF ADR PROCEDURES
Negotiation is a process of joint decision-making in which two or more people attempt to communicate about areas of common concern concerning which they may agree or may potentially disagree. The characteristic distinguishing negotiation from arbitration, as discussed below, is that it is a consensual process. In negotiation, the parties have ultimate control over the outcome. Mediation is a voluntary procedure initiated by the parties in an attempt to resolve their dispute with the help of a mediator, who serves as a neutral third party. The mediator facilitates the discussion between the parties in an effort to assist them in finding a satisfactory solution. The mediating process is an informal one in which the neutral third party helps two or more opposing parties resolve a dispute or plan a transaction but does not ordinarily have the power to impose a solution.
Unlike in a mediation, in an arbitration the parties agree to submit their dispute to a neutral third party (the arbitrator) whom they have selected to make a decision for them. Arbitration is typically a binding procedure. The arbitrator is similar to a judge in that he or she is expected to render a binding decision. In most cases, arbitration is procedurally less formal than traditional litigation, but more formal than mediation.
A summary jury trial is a non-binding condensed trial meant to encourage settlement through the use of a jury. Typically, the parties to this kind of trail agree on certain restrictions on time, discovery, evidence, experts, etc. Often there is also a limitation on the time allotted to question witnesses. Using this procedure, a case that would typically require weeks to try may take only days to resolve. Another type of ADR procedure is a mini-trial which is really not a trial at all; it is actually a structured negotiation consisting of presentations by the parties' attorneys to high-level non-legal representatives with settlement authority, and sometimes before a neutral advisor. The non-legal representatives then meet privately and attempt to settle based upon the presentations given. This process is especially recommended in commercial disputes so both parties and their attorneys can preview what might happen if the case goes to trial.
Early neutral evaluation is a procedure used early in litigation in which an experienced, impartial third person systematically examines the parties' positions and offers his or her recommendations for moving the case to settlement. Some of the above-mentioned procedures have become mixed together in what are called hybrid dispute resolution processes. This type of procedure has a mixed group of characteristics derived from a combination of other ADR procedures. One example is the "med-arb," in which the matter is first mediated and if settlement is not reached, the mediator reaches a decision on his or own, in effect becoming an arbitrator.ADVANTAGES OF USING ADR
There are several important advantages common to almost all forms of alternative dispute resolution. One of the most valuable advantages is that participants maintain much more control over the process than they could in a traditional court proceedings, in that they are able to help design a procedure tailored to their particular needs. Another advantage of using ADR is that the participants have the opportunity to select the neutral third party, whether it be a mediator or an arbitrator, with the background, skills, and experience that they believe is appropriate for their case. One of the most appealing characteristics of alternative resolution methods is the amount of time that is saved by using them. This calculation of time saved includes your and your attorney's preparation time, time lost in reaching a trial solution, and time directly involved in the procedure itself. Additionally, many of the cost savings in ADR are related to reduced client costs from less time spent in the preparation and resolution of the case. There are other opportunities for savings as well, such as a less expensive method for the presentation of testimony and evidence, resulting in lower legal fees.
Perhaps the most valuable advantage of ADR in the long-term is that the process presents the client with an opportunity to resolve the dispute at hand while also preserving the important personal relationships involved. Many disputes arise in the context of ongoing relationships. The traditional trial process sometimes encourages the opposing parties and even people who are indirectly involved (spouses, family members, co-workers, etc.) to become unnecessarily confrontational. Using ADR to resolve a dispute, especially a process based on negotiation such as mediation, may help to preserve relationships that might have been harmed or even destroyed by a more adversarial process. Also, most ADR processes are non-public, even in court-ordered proceedings, allowing for a much higher level of confidentiality. This privacy consideration, along with the less adversarial nature of most ADR procedures, increases the degree of client satisfaction with the process. Finally, many ADR procedures allow the participants the opportunity to resolve the case or dispute in a more creative way than the law or legal system allows. While judges and courts are required to follow certain guidelines outlined in statutes or set up by precedent in making a ruling, certain forms of ADR allow an inventive solution to be crafted by the parties to meet their needs and resolve their particular disagreement.
Alternative dispute resolution has become a fundamental component of virtually any modern law practice. The various ADR methods, particularly mediation and arbitration, are being used widely across the country, and are even mandatory in some states. Judges, attorneys, and clients have found these alternative methods to be useful, successful, and often preferable to the traditional judicial process. As a result, the widespread use of alternative dispute resolution in a variety of legal situations will likely continue to expand and will become mandatory in many situations.ENDNOTE:
All information in this article came from the following reference publication of the Private Adjudication Center at Duke University, Durham, NC: Rene Ellis, Robert Reason, Robert Browning, Dickson Phillips. Lawyers Cooperative Practice Guide-North Carolina Alternative Dispute Resolution. (Rochester, NY: Lawyers Cooperative Publishing Co., June 1997).
** If you have any questions regarding alternative dispute resolution, feel free to contact Beverly D. Teague, Attorney at Law/Certified Mediator, by phone at (828) 495-5000 or by e-mail at firstname.lastname@example.org or email@example.com