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In this presentation we're going to talk about alternative dispute resolution. At the end of this discussion we will be able to:
• Discuss problems with litigation
• Describe alternative dispute resolution
• Defined and discuss mediation and
• Define and discuss arbitration hearings
Whenever we have two or more parties that have a dispute, and they move outside of the normal court system, the normal process for litigation, normal adversarial system, that would be some form of alternative dispute resolution system.
When we think about the traditional type of system, court system for resolving problems, we're typically thinking of an adversarial system. We have two individuals, or companies, or parties that have a problem and in order to solve that problem they both argue their side of the problem, give the best points to their side of the problem, and typically have some other individual, court, or some other third party that's disinterested in some way, doesn't have a personal stake in the outcome, to make a judgment.
We give faith to that third-party individual because of the fact that they don’t have a personal stake in the process and that we hope that they make the judgment in accordance with how they read or see the fairness of the law that they’re going to apply to a certain situation. The is that two people that are arguably their best point, doing everything they to argue their point, and through the process of this argumentation we will come to a resolution that will be best because two self-interested parties are arguing their case as best they can.
Some of the problems with an argumentative system are that because the two parties are so interested in arguing just their case and because they're relying not on their case being ideal outcome of the case because they’re really relying on the arbitration between the two parties, the judgment, to come up with the optimal solution. This process could lead to the two parties to go towards extremes in terms of arguments and it could lead to more types of situations where there's less communication in many cases because the two the two parties have basically gone into their own camps and tried to set up everything that they can do in order to prove their case to a third party.
In some cases that could drive more of a wedge in some cases where we don't want to limit communication as much. We might want to look for some alternative systems in order to settle problems.
Other problems with a traditional litigation process would be that it is very time-consuming, and it could be expensive to find the proper litigation. When we think about this idea of two people or two parties getting together putting their best-case scenario, then words matter, how we put this scenario together matters and how we align it to the law matter, which means that legal counsel will matter. Therefore, there could be a big effect, people having more means possibly having an advantage within a system.
Because of the problems above we may move to an alternative, that being alternative dispute resolution.
Some types of alternative dispute resolution can include mediation, arbitration, and summary trials and these can save time and money in many different ways. The arbitration and mediation can be scheduled very quickly, and they can be scheduled before the lawsuit is even filed and we also can save times often by setting the appointment without having to set an appointment in accordance with a court calendar and have more readily available times in order to go through these processes.
The process of mediation is going to be a process where we have a mediator. The mediator is going to be working with the two individuals in order to find some resolution, working with both of them to find some resolution to the problem. It is a non-binding process for the mediation process in order to seek mutual resolution between the two parties. It’s often a system that can be a bit more intimate to find a third party who is not involved in either side, doesn’t have an invested interest in either side, that typically being an important part of a mediation process.
Oftentimes times the mediation process can be a less formal process and therefore allow some people to possibly do some better negotiation or not be so stringent in terms of how they're going to go about the process for dispute resolution and actually work together and look to find a solution that will be appropriate for the two individuals and not go through the process of a formal court process which could take up a lot more time and money which wouldn't be a benefit for either.
Arbitration is similar except that the arbiter is going to be a third party and they're going to have the ability to settle their dispute. The individuals, or the two parties involved, will then call upon the third person, who will be an arbitrator, typically once again going to be some type of neutral person, some person that the two parties can theoretically rely on to make a fair judgment in accordance with the facts and the law, and they're going to make settle the dispute.
The arbitration process can also have problems as well. The arbitration process is going to be at less formal, will have a less formal process than the civil procedures and that's typically thought to save time. The less formal nature could lead to more work putting together arguments that cover a wider variety of issues that would be seen is in a stricter process.
Another type of alternative dispute resolution is mediation and arbitration, a kind of mix between the two, a mediation / arbitration or a med-arb and that's going to be the idea that we're going to first have the mediation process, which is a less formal, non-binding process, and see if we can settle the dispute through that mediation process. Whatever is not settled in mediation could then be then subject to the arbitration process which would go through that process and have more of a binding decision within arbitration.
Another form of alternative dispute resolution is early neutral evaluation, a process where the parties permit a referee, type of referee, to evaluate the case between the two parties, to assess the case and the facts in accordance with the law and make a judgment based on this information. It's going to be a similar process where the two individuals involved are going to make their case and give that to the neutral evaluator who will act as a referee and come to the decision based on the facts and the law.
Another form of alternative dispute resolution is to have a private civil trial. That’s going to be a case where you're going to hire someone who is a professional, a judge who knows the process of official litigation process and they’re going to go through the disputes between the two individuals with the same rules that you would have for an official trial. Therefore, it is we have the element of having the official trial there; we’re going to go through the same process, we’re going to go through the steps. We have the benefits of that formal, process but you can't schedule it more easily because we're not going to go through that the formal court system and have to go through the normal docket system in order to process the case. The involved can also decide on the judge which can be very beneficial as well.
The forms of alternative dispute resolution that we have talked about so far are cases where there's already a problem, there’s already a dispute, and we are then picking and applying a form of alternative dispute resolution. Given the fact that there are so many options for dispute resolution it is possible to take some more proactive steps in order to first say if there's a problem in this particular relationship we will then go to this particular form of dispute resolution, and that could be a process that will save time. In other words, we can come to the agreement that if a problem arises, we will go towards this form of alternative dispute resolution, it has already been agreed upon in advance.
The types of approaches discussed above could include partnering, alternative dispute resolution contract clauses, settlement week, negotiated rulemaking, collective science court proposals, and post-appellate procedures.
The concept of partnering is often going to be used when we have a lot of different parties involved in a big project. When that’s the case, then we want to make sure that if there are disputes between the parties involved that we can handle those disputes in a way that's not going to hinder the total process going forward. We want to be able to set ground rules on how any disputes will be set within the process of any kind of project that we're going through where there’s a lot of complex relationships going on.
An alternative dispute resolution contract claws an ADR contract clause is what you would think it sounds like and that is that the parties involve will in advance agree to a particular form of alternative dispute resolution if the problem is to occur in the future.