Guideline B-8 on Alternative Dispute Resolution and Online Dispute Resolution
Guideline
The practitioner should recommend to clients, and engage in, alternative dispute resolution, or ADR, and online dispute resolution, or ODR, processes when they would serve the client's interests or when they are required by law. When these resources are inappropriate for the clients or cases involved, practitioners should argue against requiring cases to be resolved in this way. Organizations should be actively engaged in local jurisdictional discussions and decisions regarding ADR and ODR, particularly when it is mandated or designed to be "opt-out" to ensure clients' rights are protected.
Commentary
General Considerations
The term, alternative dispute resolution (ADR) refers to a variety of widely practiced methods to resolve disputes outside of the formal judicial process. Online Dispute Resolution (ODR) refers to a variety of ADR methods that take place entirely online, some involving a mediator and some involving only the parties. Practitioners with clients in ADR and ODR processes should proficiently and zealously represent their clients consistent with the procedures and expectations in the process, including advocating for removal from the process where that is feasible and is in the client's best interest. A practitioner should consider when ADR or ODR may be the best way to resolve a client's legal problem or is mandated by law or applicable rules of procedure. There are many circumstances when the client's legal problem will appropriately be resolved through ADR or ODR. The use of ADR is well-established and ODR is rapidly increasing as judicial systems in many states seek methods for resolving legal disputes that are more cost-effective for both the courts and the parties than litigation. In addition, legal reform in some jurisdictions has led to the formation of forums that seek to take decision-making for issues such as child custody out of the adversary process. ODR has been advocated as a very convenient way for parties to resolve legal disputes, since they may do it at any time of day or night due to designs of asynchronous mediation or discussion.
Some clients may also prefer to resolve problems in ways that do not involve going to court or engaging in an adversarial process. Some cultures, including some Native American communities as well as many immigrant populations, combine conciliatory problem-solving values with a general mistrust of judicial process.
Forms of ADR
The most common forms of ADR in legal aid practice are mediation, conciliation, and arbitration. Mediation is a process in which persons with a dispute seek to reconcile their differences and reach a voluntary settlement with the help of a neutral third-party mediator. The mediator has no authority to impose an agreement, but rather helps the parties to identify issues and explore ways to resolve their differences and to reach an acceptable solution.
Conciliation is a process that also seeks to bring the parties to a voluntary agreement, but in which the third party is not necessarily as neutral as it is in mediation. A conciliator is sometimes used where important rights are at issue and the conciliator has a responsibility to ensure that the terms of the settlement are compatible with pertinent law.
Arbitration involves a generally shortened and less-formal version of a trial without formal discovery and with simplified rules of evidence. Arbitration involves a third party who acts as a fact-finder and decides on the appropriate resolution of the legal dispute. The fact-finder is not a judge, although some arbitrations are undertaken under the auspices of the court. Both parties generally agree in advance or are bound by law to accept the decision of the arbitrator.
There are other forms of ADR that are seldom used in legal aid practice, including mini-trials, summary jury trials and summary bench trials. Practitioners should stay aware of new forms of ADR that evolve over time and determine if their use would serve the interests of their clients.
Consideration of When ADR is Appropriate
The practitioner should consider when a form of ADR is required or would be in the best interest of the client. The practitioner's first responsibility is to counsel the client on the law regarding ADR and its implications for the client's case. The practitioner should advise the client about the nature of the ADR process and its strengths and limitations. The practitioner should make certain that the client understands the degree to which the outcome of the process is binding or may later be challenged.
Mandatory ADR. Some jurisdictions require arbitration or mediation for some issues or disputes and do not offer the client a choice of whether or not to participate. Arbitration is mandated by law in some jurisdictions when the amount in controversy is below a set amount or in cases that fall in specific substantive areas, such as property disputes or torts. Parties to family law cases are required in some states to seek agreement in mediation or conciliation with regard to some aspects of the matter, such as custody or support. In some states, the court can order ADR in any civil action, based on the judge’s determination that there are issues that could be resolved or clarified by ADR At times, a court will mandate that parties to a lawsuit seek to reach a settlement agreement on some or all of the issues in dispute.
At other times, a client may be bound by a contract to submit a dispute to binding arbitration, particularly with regard to consumer and employment matters, with no opportunity to litigate the issues in a court proceeding. Often such requirements work to the disadvantage of the client and limit the amount of recovery that the client might otherwise obtain. The practitioner should consider action seeking to set aside such requirements in a contract if it is in the best interest of the client and a basis exists for doing so.
Voluntary ADR. There are times when a practitioner should consider recommending ADR to a client as the best means to resolve a legal dispute. If ADR is a voluntary option, the practitioner should assess the potential advantages and risks of ADR, of litigation, and of other means of resolving the issue and should recommend to the client which is most appropriate.
There are circumstances when ADR may be advantageous to a client. ADR can significantly reduce costs of resolving disputes and can significantly speed up the process, as the parties are not bound by the court's calendar that in many jurisdictions involves long delays in obtaining a court date. ADR procedures also generally take considerably less time than court hearings and trials on the same matter. ADR also often offers an opportunity for the parties to resolve disputes without inflaming passions on both sides. This can be especially important in family law matters and between persons who will continue to have a business or personal relationship after the dispute is resolved.
On the other hand, there are times when ADR may be disadvantageous to the client, and the practitioner should resist subjecting the client to a process that may damage the client's interests. Often there is unequal bargaining power between an adversary and a legal aid client. Mediation and conciliation will only work if both of the parties are willing to participate in good faith. There are also matters that may not be suited to ADR, including disputes that arise from a disagreement about the interpretation of the law or where the safety of one of the parties is at risk.
A practitioner who believes that a voluntary form of ADR would be appropriate should consider tactical factors regarding when it is best to seek it. In some cases, ADR may be agreed to in lieu of litigation or it may occur as a stage in the litigation process. At times, it may be appropriate to seek an agreement with the adverse party before any of the parties have incurred significant costs. At other times, if the client has a strong case, it may be advantageous to wait to pursue it until after there has been discovery and the adverse party has seen the potency of the client's case and might be more inclined to settle.
Costs of ADR. In some jurisdictions, the court may make ADR available to the parties when requested from a court-annexed ADR project. In other circumstances, parties voluntarily seeking to engage in an ADR process may have to agree to the process and seek a private mediator. In most cases, the costs of voluntary ADR must be borne by the parties. Because the practitioner is most likely to be representing a party without the means to pay, the practitioner should consider seeking the assistance of a mediator who agrees to provide the services on a pro bono basis or get the other party to bear the costs if it is able to do so.
Forms of ODR
There are different situations where ODR may be used and ways to engage in ODR, and each brings unique advantages and disadvantages. Below is a brief discussion of several factors that can have an impact:
- Government Versus Party: In these types of cases, individuals can engage in dispute resolution through ODR with a court and a government entity, such as the police, prosecutor's office, etc., to resolve a legal issue such as a traffic ticket, resolution of an outstanding warrant or show cause order, etc.
- Represented Party Versus Unrelated Unrepresented Party: These are often landlord/tenant disputes or debt collection cases where represented landlords or debt collectors and unrepresented tenants or debtors try to reach a settlement of their dispute. These are of concern in cases where there may be no true middle ground, or where a legal issue (typically a defense) might be dispositive of the case, in which a settlement is detrimental to the unrepresented party.
- Party Versus Known/Related Party (Irrespective of Representation): These are often family law matters, where a settlement is often seen as a better outcome than a judicial decision. Factors such as whether one or both sides are represented, or whether there are power dynamics or domestic violence at play, can make ODR detrimental to one party.
- Representation of Parties: Whether one or both parties are represented or unrepresented can impact the dynamics of ODR, as well as the likelihood of reaching a settlement.
- Mediated Versus Unmediated: Some ODR systems encourage, allow, or require parties to try to resolve the dispute on their own before introducing a neutral third party to mediate, or allowing a party to request one. Others introduce a neutral third party at the beginning to help the parties resolve the dispute. Use of a mediator increases the likelihood of a settlement, can increase the fairness of the proceedings, and requires more resources from the jurisdiction sponsoring the ODR.
- During Litigation Versus Before or Outside of Litigation: Some ODR systems only work after a legal case has been started, while others offer to settle legal disagreements before or instead of litigation. ODR during litigation can also happen early in litigation or in a later stage, after other options have failed. The stage of the case will determine the format of the writing used to document the agreement.
- Opt-In Versus Opt-Out ODR: Some systems automatically enroll litigants in certain case types into ODR and require them to apply to opt-out in order to get out of the ODR system. Other systems offer ODR and encourage litigants to opt-in to those services. These factors impact participation rates, rates of success in reaching an agreement, and rates of user satisfaction with the process.
Consideration of When ODR is Appropriate
In addition to the above considerations, practitioners must evaluate whether clients have the technology tools and skills to participate in ODR, the pros and cons of dispute resolution without a mediator, whether the case involves potentially dispositive legal issues which make a negotiated settlement impossible or unwise, and whether ODR results in an inequitable result. Any ODR, but particularly an opt-in system, can be impossible for litigants without reliable access to the internet and create a barrier to access for those litigants. Similar, but possibly less obvious, barriers exist for people who lack the capacity to engage in online dispute resolution for a myriad of reasons discussed elsewhere in these Standards. Unlike traditional ADR, ODR is one of the only recognized formats of court-sponsored dispute resolution that may not involve a neutral third party. There are potential drawbacks to parties attempting to settle legal disputes without any training in dispute resolution or legal subject matters at issue, but there are also potential benefits in terms of parties reaching creative settlements and not utilizing court resources to resolve their dispute. Similar to ADR, ODR is a bad choice for cases where compromise is not possible or feasible, including when there is a legal question that if decided by a judge, would result in a non-compromise solution. Examples include debt collection cases where the debt owner doesn't legally own the debt, an eviction matter where legal protections exist which prevent a tenant from being evicted, such as a retaliatory eviction, or a family law case where a legal question of paternity would result in one party having no rights to parenting time or custody and no obligation to pay support. These issues and many others, plus a literature review, can be found in the 2021 NLADA publication, "Efficiency is Fine, but Equity is Better: The Civil Legal Aid Community and their Views of Online Dispute Resolution."
Responsibilities of Practitioners in Representing a Client in ADR or ODR
A practitioner owes the same responsibility to the client for competence, diligence, protecting client confidences,and avoiding conflictsas in a fully litigated matter. In addition, the practitioner owes a duty of candor and truthfulness in statements to others in ADR.The role of a practitioner representing a client in an ADR process will vary depending on the process.
Mediation or conciliation. It is important for the practitioner to recognize that the success of a non-adversarial procedure is dependent on the parties agreeing and that compromise is essential. The role of the practitioner in mediation or conciliation, therefore, is not necessarily to be rigorously assertive on behalf of the client, but rather to ensure the pertinent issues and facts are presented in a manner that is favorable to the client. The practitioner may have to counsel the client regarding what is a reasonable compromise, given the fact that no agreement is possible unless both sides agree. The client should know that the agreement is voluntary and there is no obligation to agree to an unacceptable outcome. At the same time, the practitioner may have to encourage a client to accept a reasonable outcome if the result in an adversarial proceeding is likely to be significantly worse.
The practitioner should prepare for mediation with the same diligence as if the matter were contested, and should recognize that the audience for the presentation of the case is the other party as well as the mediator. The practitioner should, therefore, consider effective ways to present the case in a compelling fashion through exhibits and other media.
In some court-mandated mediations, a lawyer is not allowed to participate directly in the process. In such circumstances, the practitioner should prepare the client by explaining the process and coaching the individual on how to make a good presentation of favorable facts. The practitioner should also explore what are reasonable and acceptable outcomes, so the client will not agree to an inappropriate settlement. To the extent permitted under the rules in the jurisdiction, the practitioner should be available to the client during the proceeding to answer questions and provide advice, particularly about any proposed settlement.
If the practitioner feels that the client will be unable to participate effectively in the mandatory mediation because of personal limitations, such as limited proficiency in English, the practitioner should seek permission from the court to assist the client and object on the record if permission is not granted.
Arbitration. In arbitration, the practitioner’s responsibilities are more akin to representation of a client in trial, except that there is likely to be only limited discovery or none at all and the presentation of the case is generally shorter and less formal than in a trial. The rules of evidence are also generally relaxed. The target for the advocacy, however, is the arbiter who will make the decision in the matter. The practitioner should explain to the client whether the arbitration is binding and the degree to which there is a basis for challenging an unfavorable finding. Often, under state and federal law, there is only a limited basis for challenging an arbitration award.
Follow-Up. The practitioner has a responsibility to make certain that the findings of the ADR process are reduced to writing and are enforced. In the event that mediation fails, or the adversary fails to comply with the terms of the arbitration award or the agreement reached in mediation, the practitioner should take appropriate next steps including pursuing litigation to protect the client's interests.