Alternative dispute resolution is an area of the law that has grown and developed immensely over the last twenty years.

Alternative dispute resolution is an area of the law that has grown and developed immensely over the last twenty years.

The term “alternative dispute resolution,” or “ADR,” refers to a number of different processes whereby a dispute that would otherwise be decided in a contested trial in a court of law is resolved by an alternative process.

Courtroom trials are generally stressful, expensive, uncertain, exhausting, and gut-wrenching affairs, where lawyers and parties invest thousands upon thousands of dollars in out of pocket expense and attorney time, with the hope that they ultimately revel in victory, and do not suffer in defeat.

I have tried many cases over the years.

I have won trials where the thrill of victory was exhilarating and intoxicating.

I have lost trials where the agony of defeat was just that, agonizing, for both myself and my client.

Some trials end up without a clear winner, and no clear-cut delineation of who was right, who was wrong, and whose side God wanted to win. Typically, in those instances, both sides claim victory, but privately feel disappointment.

    These dynamics, and in particular the extreme economic and emotional cost of the trial process, have spurred on the field of ADR, where parties seek an alternative to the often thorny process of a contested trial in a court of law.

ADR can take several basic forms.

Perhaps the most common form of ADR is mediation.

Mediation is a process whereby an independent party, a mediator, typically an experienced lawyer who is well-respected in the legal community, meets with both sides to seek to facilitate the negotiation of an amicable settlement agreement. 

In most counties in the metro area, courts order the parties to go through mediation before a case can be tried in court.

Caucusing is one type of mediation that is often used in injury cases and financial disputes. 

It starts with both parties, and their lawyers, in the same room at the same table. 

Each side is offered the chance to present a summary of the strengths of their respective sides of the case. 

Often, it is the first time the party, the client, actually gets to hear the lawyer on the other side at work, which can often be educational, enlightening, and perhaps a bit intimidating, for both parties.

Then, the parties split up into separate rooms, and the mediator visits first one group and then the other, moving back and forth between rooms, conveying information, playing devil's advocate, and relaying offers and counter offers of settlement to each side as he goes.

A day of caucusing with a mediator can often serve to effect a settlement where the parties had been previously deadlocked.

Family law cases – divorce, child custody, and the like – are often mediated without the lawyers present, and often without caucusing, where the mediator sits down with both parties face to face, and facilitates a dialogue with an eye toward finding a common ground on all of the issues in dispute.

Another form of ADR is arbitration.  Arbitration can take many forms, but essentially it involves the parties agreeing to submit the facts of their case in an agreed fashion, without the formal rules of courtroom procedure and evidence, to an agree-upon person or group of persons, who render a decision that the parties agree in advance to accept.

Arbitration removes much of the cost of the case by removing many of the formal rules and procedures required in the court system.  The down side is that when those rules are removed, honesty and justice can be compromised by lack of cross examination, lack of discovery procedures, surprise, and the lack of appellate review that would be available in the court system.

There was a time when I thought that ADR was for sissies, and real men settled matters like warriors, in a court of law.

However, over the years, I have come to see the benefit that can come with resolving disputes through alternative dispute resolution procedures, and how it can save people time, money, aggravation, stress, uncertainty, and a whole host of other negatives that are inherent in being in the court system.

I also think that the same transformation in thinking has become widespread, making ADR a significant part of the civil justice system as a whole.