The Alternatives in Alternative Dispute Resolution

Selecting the right ADR process can help resolve a conflict in the long and short term.

Selecting the right ADR process can help resolve a conflict in the long and short term.

Legal conflicts run the gamut between a single contract that is entered into for one transaction between strangers to a family will contest and it is not surprising that different forms of ADR are suitable for different people, different kinds of conflicts and at different stages in both the legal and emotional part of the battle.  Today I am going to begin a ten part series of posts that will explore the alternatives in ADR. I’ll begin with processes that depend on a neutral facilitator such as mediation (including evaluative, facilitative, and transformative mediation), neutral evaluation, and arbitration.  I'll then turn to some processes that have components of ADR but do not require a neutral.  Finally will look at a few methods that don't fit neatly into any category.  With each process, I'll review the components and the definition, what makes each one unique, the steps or stages in the process, particularly the meetings, and the advantages and disadvantages of each process. Please contact me if you have any questions about what ADR process is right for you!

MEDIATION

 Definition/Components:

 “In simple terms, mediation is a process, facilitated by a third party, by which disputants discuss their concerns and issues and explore possible options for mutually satisfactory solutions to differences.” [1]

Unique qualities:

Unlike litigation, mediation is entirely confidential and private. Unlike arbitration, mediation leaves the decision making with the stakeholders. 

Steps or stages:

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Most mediations, regardless of the style of mediation, begin with an introduction or the mediator’s opening statement.   The parties often provide an opening statement followed by a joint discussion.  The mediator then works through issues with the parties, sometimes in private sessions called caucus. At the end of the meeting, the mediator often brings the parties back into a joint session. The mediator prepares any agreement in writing, and the parties sign it. 

Advantages:

·      Typically cheaper than litigation.

·      Clients report greater satisfaction than in litigation.

Disadvantages:

·      May not address power imbalance.

·      When parties are not participating voluntarily, may be an obstacle to justice.

·      Each style or form has distinct disadvantages.

Best for: 

 Mediation is usually well suited for any type of civil legal conflict or dispute when the parties can be identified.  Mediation is less useful when the issue presented involves public policy, requiring greater transparency. Mediation is also not the best option when parties are seeking to create social change or establish a precedent for future conflicts.

Resources:

Christopher Moore, The Mediation Process, Practical Strategies for Resolving Conflicts (4th Ed.)(2014).

Helpful Forms:  

Agreement to mediate (Virginia)

 EEOC Agreement to mediate

 Report to the Circuit Court (Virginia)

Report to the Court (Federal Court, Northern Dist. WV)

https://www.wvnd.uscourts.gov/sites/wvnd/files/Report%20of%20Mediator%200911.pdf

 Report to Bankruptcy Court (Florida)

National Board of Relator forms used in mediation.

Training Manual for mediation program with many forms for different mediation reports at the end.

 




[1]  Mennonite Conciliation Service, Mediation and Facilitation Training Manual (2000) at p. 147.