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Legal Grind® presents

The Little Law Book

by Miriam Kurtzig Freedman, J.D
Illustrations by Daphne San Jose

Legal Procedures and Courts

CHAPTER 20

Alternative Dispute Resolution, or ADR

I'LL SEE YOU IN COURT! OR WILL I? INTRODUCING ... ADR!

As the costs (in time, money and effort) of going to court rise and the courts are often backlogged, several ways to settle legal disputes without going to court have emerged. They are called alternative dispute resolution (ADR) models. Alternative to what? (A) To litigation: the judicial (court) contest that decides and enforces legal rights. (B) To the adversary system: another name for litigation.

Generally, people use ADR because it is less time consuming, less expensive, and less stressful than litigation. ADR currently exists in several forms: negotiation, arbitration, conciliation, mediation, and pretrial hearings.

  1. Negotiation: Occurs when the parties try to settle their dispute themselves. Just as between parents and children, husbands and wives or neighbors and colleagues, it is a possible avenue for resolving disputes that involve legal rights and responsibilities.
  2. Conciliation: Occurs in court before trial, when the parties meet to try to settle their differences. If they do so, they are said to, 'reach a settlement agreement.' Also used in labor disputes before the arbitration as a final effort to settle the case.
  3. Pretrial hearing or conference: Occurs when the parties meet before the trial begins to attempt to settle their dispute or narrow the issues between them or agree on certain facts ('stipulations'), to simplify the trial. This meeting usually occurs with the judge or administrative hearing officer who will hear the case if it doesnít settle.
  4. Mediation: Occurs when the disputing parties try to settle their differences by having a neutral third person, a mediator, help them. The mediator may be a stranger or friend or someone hired by the parties through a mediation service.
    The mediator
    1. hears both sides,
    2. listens to each side privately (in what is called a 'caucus'),
    3. brings the parties together,
    4. helps them see their areas of agreement as well as disagreement, so they may settle their dispute.
      Mediation may be used often in divorce cases and in relatively minor criminal matters, as when neighbors argue about unruly children or dogs, or in assault and battery situations among family members or schoolmates. People who know each other and need to get along in the future often use it. A court may order the parties to attempt mediation. Mediation is used in business settings, as well as disputes about special education.
      Note: The mediator does not decide the case for the disputants. He acts as a facilitator. If the parties reach an agreement, the mediator helps them to write it down. It is called a 'settlement,' or 'mediated agreements,' or 'settlement at mediation,' or-well, you get the idea! One could always mediate to decide what to call the agreement!

  5. Arbitration: Occurs when, as in mediation, the parties use a neutral third person, an arbitrator. However, the arbitratorís role is quite different from that of a mediator. The arbitrator is chosen by both parties from a list of persons provided by government or private agencies. He hears the evidence from both sides in a setting that is somewhat like a court, but less formal and usually takes less time than a full trial. Then the arbitrator makes the decision for the parties, specifying their rights and responsibilities.
    Note: This is very different from the mediator, who does not decide the partiesí legal rights and responsibilities, but only facilitates their agreements.
    Arbitration is often incorporated into
    • labor contracts,
    • business contracts,
    • consumer laws such as automobile 'lemon laws,'
    • and contracts between parties.

    For example, in fee disputes between lawyers and their clients! 'If we can't agree on a fee, we'll take this matter to binding arbitration.'

    The arbitrator's decision is almost always binding. That is, the parties agree that this will be 'binding arbitration,' and they will live with the decision and not to appeal it (except on rare occasions).

    In other cases, as when a judge orders parties to arbitration instead of pursuing their lawsuit, the arbitratorís decision may not be binding. (Remember: people cannot be deprived of their day in court, i.e., and their due process rights!)

As you can see, even with Alternative Dispute Resolution there are several alternatives.

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