Alternative Dispute Resolution (ADR) is more than just mediation or arbitration. Indeed, ADR encompasses a range of techniques that often blend different dispute resolution processes to find the best fit for the problem (and parties) at hand. The beauty of ADR is that the choice of which process or processes to use is up to the parties and they can retain as much or as little control over the details as they wish.
Some common forms (with brief descriptions) of ADR include:
Mediation is where a neutral third party, who is acceptable to all parties, assists the parties in reaching a negotiated settlement by helping to: identify issues of mutual concern, develop options to resolve such issues, and find a resolution acceptable to all parties. At its core, mediation does not involve the imposition of a solution or decision by the mediator; instead, the parties always retain total control over the outcome.
Facilitative Mediation (a.k.a. "facilitation") places the mediator in the position of a "traffic cop" who maintains communication between the parties and helps create potential settlement options.
Evaluative Mediation (a.k.a. "case evaluation") is very similar to facilitative mediation, except that the mediator injects his or her own views and predictions of how the issue would be resolved at trial and possibly even recommending settlement ranges.
Neutral Evaluation is where a neutral third party evaluates the merits of the case and provides the results to the parties, but does not help the parties reach a settlement. Like mediation, neutral evaluation is non-binding.
Neutral Fact-Finding involves a neutral third party who makes findings of fact and gives analysis based on presentations by the parties. It can also involve an independent investigation of the facts and issues.
Arbitration is "adjudicative" in nature as a neutral third party renders a decision after hearing facts and arguments presented by the parties. Unlike trials, arbitration is almost always less formal, more abbreviated, and uninterrupted. The fact is that the rules for arbitration are determined by the parties.
Non-Binding Arbitration means that the decision rendered is not binding.
Binding Arbitration means that the decision rendered is binding and generally appealable to a court under very limited circumstances.
Bracketed Arbitration is where the parties "hedge" their bets by entering into a high-low agreement that limits the possible range of outcomes.
Final Offer Arbitration is where the parties each submit separate offers of settlement to the arbitrator and renders a decision that falls between them based on the parties' presentations.
Med-Arb is a process that starts out as a mediation, but changes to an arbitration if the parties are unable to reach a settlement. This type of arrangement is made in advance and can allow the mediator to switch hats and become the arbitrator or use another neutral third party to arbitrate the case.
These categories are intended to give you a flavor of the extraordinary possibilities and alternatives that ADR can bring to your dispute. They can be mixed and matched and are limited only by the parties creativity and agreement. Our goal is to work with the parties to identify the ADR option that offers the best chance of resolving their dispute in a mutually acceptable manner.
If you are interested in learning more about ADR and our Services, please feel free to Contact Us.
