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.
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!
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
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.Go to top