A study of civil cases handled by Assistant United States Attorneys (AUSAs) found that when alternative dispute resolution (ADR) was used, 65% of cases settled compared to only 29% of cases when it was not used. When used appropriately, ADR is effective at helping parties in a dispute come up with flexible and creative solutions that preserve relationships, reduce stress and keep private disputes private. Considering all the benefits of ADR, it’s no surprise that the demand for arbitrators, mediators and conciliators is projected to grow faster than the average for all occupations over the next decade, according to the BLS.
There are many types of ADR, and sometimes different names are used for similar processes, but it doesn’t matter so much what the process is called as long as it helps parties solve a dispute out of court.
According to the United States Agency for International Development and the Office of Conflict Management and Mitigation, the main characteristics of ADR processes are:
- Informality – Fundamentally, ADR is much less formal than court-room proceedings. This informality is appealing to parties who may be intimidated, overwhelmed or exhausted by more formal judicial systems and processes. The informal nature of ADR also helps speed up proceedings and reduce the cost for those involved.
- Application of Equity – ADR cases are decided by a neutral third party or negotiated between disputants themselves rather than on uniformly applied legal standards. While this means that ADR systems cannot establish legal precedent, the application of equity rather than the rule of law preserves the substantive and procedural fairness of dispute resolution.
- Participation and Communication – Successful ADR depends on participation and communication between disputants. By facilitating dialogues between parties, ADR systems inherently provide more opportunities for reconciliation and more flexibility in designing creative settlements.
If you’re thinking about becoming an ADR practitioner, there are many types of ADR that you can choose to practice. This list, though not exhaustive, is a good place to start if you wish to learn more about the types of ADR that you can use to help people and organizations settle disputes outside of the court’s traditionally adversarial setting.
In arbitration, two parties present evidence to a neutral third party (an arbitrator) who has the ability to make a legally-binding decision, or “award,” that is enforceable in a court of law. In non-binding arbitration, the decision is advisory and only final if accepted by the disputants. Arbitration is often used to resolve commercial disputes, as well as consumer and employment matters, and can either be voluntary or mandatory (as mandated by the terms of a contract in which the parties agree to resolve existing or future disputes through arbitration).
Also known as “early neutral evaluation,” or ENE, case evaluation is a process in which a neutral third party examines evidence and then provides his or her evaluation of the case. Case evaluators advise disputants on the strengths and weaknesses of their respective evidence and positions, which the parties may use to help reach a mutually agreeable resolution. The findings and opinions of the case evaluator may be shared privately to each party, or in a joint session where all parties are present.Relevant Links:
In litigation, both parties relinquish their decision-making into the hands of a judge or jury. Collaborative law processes, on the other hand, are intended as early interventions where parties and their lawyers commit to an approach of settlement negotiation from the outset. The process typically involves “four-way meetings” where each party and their respective lawyers (and possibly other professionals such as appraisers, financial specialists and case evaluators) exchange relevant information, develop options for resolution and reduce them to a settlement agreement.
Although mediators coach parties to varying degrees, conflict coaching is focused entirely on helping individuals (or parties) improve their competency in conflict management so they can resolve disputes on their own without the opinions or recommendations of a third party. Coaching between parties can help disputants better articulate their perspectives and needs, as well as acknowledge one another’s needs and interests, so a more agreeable solution can be reached in a timelier manner. Conflict coaches may also be consulted privately by one side prior to mediation, arbitration or other ADR processes to strengthen their presentation during conflict resolution discussions.
Arbitration and mediation are similar in many ways, except in mediation the third party presiding over the dispute has no power to impose a resolution. Mediators guide disputants toward a mutually agreeable settlement, but the final decision is left to the parties themselves. If an agreement is reached, the mediator may help reduce the agreement to a written contract which may be enforceable in court.
A mini-trial is a private hearing where attorneys for each party present a summarized version of their case to a panel consisting of a neutral advisor as well as representatives from each side who have authority to settle the dispute. The difference between mediation hearings and mini-trials is that the decision-makers presiding over the dispute are agents and advocates for the parties who work out a settlement amongst themselves. If the representatives fail to settle the dispute, the neutral advisor may issue a non-binding opinion on the matter.
Parenting coordination is a child-focused ADR process in which a third party assists high conflict parents to work out problems in implementing a court-issued parenting plan. Parenting coordinators (PCs) are either appointed by a court or hired privately by parents who wish to reduce child-related conflicts. Although PCs can usually not make changes to any court-ordered guidelines such as custody or visitation, they may be able to petition the court if both parents agree on a more suitable arrangement. However, the main function of the PC is to resolve ongoing co-parenting disputes and facilitate the development of healthy, functional co-parenting relationships.
Although many states recommend qualifications for mediators, arbitrators and other ADR practitioners, no state has enacted laws regulating the private practice of alternative dispute resolution. You also don’t need to be an attorney to become an ADR practitioner. However, you should have knowledge of the legal system and the skills to help opposing parties settle disputes outside of court. The Master of Legal Studies (MLS) degree can help.
MLS programs provide a foundational understanding of the US legal system and its interaction across a number of core disciplines. Some MLS degree programs may even offer a concentration in alternative dispute resolution methods, such as our partner Pepperdine University’s MLS dispute resolution concentration. And thanks to the flexibility and convenience of online learning, you can earn your MLS degree without putting your life on hold.
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