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The Road to Settlement: ADR Can Offer Cost-Effective Alternatives to Trial

If we don’t litigate our disputes, what alternatives are there?

It is ironic that we call processes that humans have been using for thousands of years “alternative.” Long before there were lawyers and courts, there were methods of resolving disputes such as mediating with a wise member of the village, allowing an elder to decide the solution, bouncing ideas off others not involved with the problem, or sitting down over some saber-tooth tiger steaks and working out your differences. As we “evolved,” courts became the places to air your grievances and seek damages. However, most people do not end up fully litigating their cases in court. So it seems that the “alternative” processes are the preferred method of resolving disputes.

Abraham Lincoln agrees with us. “Discourage litigation,” he says. “Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”

Litigation is a last resort. It is expensive, time-consuming, and emotionally draining. The law provides a number of alternative methods for helping people achieve mutually agreeable solutions. The umbrella term for these methods is “alternative dispute resolution,” or ADR.

What types of ADR are available?

There are four primary types of ADR:

  1. mediation,
  2. neutral evaluation,
  3. arbitration, and
  4. collaborative law.

What is mediation?

In mediation, a neutral person helps both sides resolve the dispute, without resolving the dispute for them, by listening, exchanging offers, exploring ideas, and challenging a position when necessary. The final resolution is in the hands of the clients. The mediator cannot testify in court about what was said at mediation, and the advantage of that is that the clients can negotiate without being worried that something they say will be used “against them.” Often the clients are in separate rooms such that they may share thoughts, feelings, and goals freely with the mediator without being concerned with how the other spouse may react or respond.

What is a neutral evaluation?

A neutral evaluation occurs after a neutral expert listens to the positions of both sides and offers insight into the strengths and weaknesses of each side’s positions. He or she then provides an evaluation of the case. Again, the final resolution is in hands of the clients; it typically occurs within a few weeks of the evaluation.

What is collaborative law?

In a collaborative law case, each side selects a specially trained lawyer who offers support and guidance while working together with the other side’s lawyer towards a mutually agreeable resolution. The hallmark of collaborative law is that if either spouse decides to go to court, both spouses must hire new lawyers. Each person takes a pledge to be honest, provide complete information, negotiate in good faith, be respectful of the process, and act with integrity. All negotiations are in the form of a four-way meeting, meaning that both lawyers and clients are there. Each meeting typically starts with an agreed-upon agenda.

What is arbitration?

In arbitration, a person is selected to listen to both sides and their witnesses and to review the evidence. In binding arbitration, the arbitrator serves the role of a private judge. In nonbinding arbitration, if you are unhappy with the arbitrator’s decision, you can take the matter to court for a trial.

When can you use ADR?

You may use ADR before, during, or after a separation. ADR can also be used to modify existing orders or agreements about your family law matters.

It is wise to wait to engage in ADR until you have enough information so that the process will be meaningful. How much information is enough depends on the process you select. For example, if you have no information about your family’s finances, it may be premature to use ADR, with the exception that collaborative law might be a good solution, as part of the collaborative process entails gathering and sharing financial information at your joint meetings and being sure that each side has the same information. As a further example, it could be that you have enough information to mediate and come up with a mutually agreeable solution but not enough information to have a neutral evaluation or an arbitration conducted.

What are the advantages of using ADR?

Often ADR is a more economical and efficient process than the court system. ADR is a less formal process than court, as well. With all types of ADR except arbitration, the clients have the final say on whether a resolution is achieved or not, which means that you have control over the outcome of your case, and that is generally preferred, as you are the one who has to live with final decisions made.

How do you pick an ADR professional?

You may need to defer to your lawyer, if you have one, as she or he is likely to have worked with many ADR professionals and to have some criteria to share with you. When selecting a mediator, lawyers often consider style, approach, and background. For instance, for a business valuation issue, a lawyer with experience in reviewing and critiquing business valuations is likely to be selected. If you are selecting an arbitrator, it is important to find an experienced family lawyer who will have dealt with issues like the ones you have in your case. As for collaborative law, you should look for individuals with special training in collaborative law.

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Jenny Bradley

Triangle Smart Divorce

Cary, NC