Civil ยท ADR

What Is Alternative Dispute Resolution?

There Are Options To Litigation
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Going to court, commonly called "litigation," may decide the dispute, but the process can be time consuming, expensive and emotionally draining. Fees may escalate well beyond the original estimate, and the time it takes to reach a decision in our busy courts can be months or even years, sometimes putting all other plans on hold. Many times, relationships suffer from the pressure. In considering all these circumstances, exploring options other than litigation can be a worthwhile pursuit.

"Alternative Dispute Resolution (ADR)" is the term used to describe all the other options available for settling a dispute which once had to be settled in court. ADR processes such as arbitration, mediation and settlement conferences are less formal than court and provide opportunities for litigants to reach an agreement using a problem-solving approach rather than the more adversarial approach of litigation.

For parties to the dispute, these options:

  • are highly cost effective;
  • take less time to resolve;
  • foster future positive relationships;
  • are rated as highly satisfactory;
  • provide more control over the outcome.
For attorneys, benefits in addition to those mentioned above include:
  • shorter time for disposition;
  • quicker results for clients;
  • ability to represent or advise more clients;
  • fewer fee disputes;
  • greater client satisfaction.
ADR can reduce the time, expense and stress of litigation by using the most appropriate dispute resolution method to settle the case. 97% of civil cases settle before trial, so it's worth considering these alternatives early in the process.

What Are My Options?
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The Court sponsors three highly effective ADR programs: arbitration, mediation and settlement conference, each described below. Any of the programs may be "mandatory," that is, ordered by the court, when the amount or award in dispute is under $50,000 per plaintiff. However, these alternatives to litigation may also be requested by the parties at any time on their own initiative, in which case they are considered "voluntary."

  • Arbitration

    In arbitration, each side in the dispute presents its case, including evidence, to a neutral third party called an "arbitrator," rather than to a judge. The arbitrator, who is an attorney, issues an award based on the evidence just as a judge would, within a time frame set by the Court. Although evidence is presented, arbitration is a less formal process than litigation.

    Arbitration may be "binding" or "non-binding" depending on what the parties agree to before beginning the process. "Non-binding arbitration" means that the participants in the case are not required to accept the arbitrator's award; they may request a "trial de novo" which returns the case to the Court's calendar as if the arbitration had not occurred.

    It is important for parties to understand that, in agreeing to binding arbitration or by not requesting a trial de novo, they are waiving their right to a trial and are accepting the arbitrator's award as a final decision.

    Parties may also request a form of binding arbitration called "baseball arbitration." In these cases, parties in the dispute make their own recommendations to the arbitrator for an award. The arbitrator is then required to choose one side's proposal and can make no changes or modifications in the proposals. (In other arbitration sessions, the parties do not make recommendations for awards; the arbitrator makes an independent decision). Because no changes can be made in the proposed awards, parties are encouraged to make reasonable proposals.

    A case referred to arbitration can be withdrawn from the process before the arbitration session only by Court order.

  • Mediation

    As with the other ADR processes, mediation may be either "mandatory," that is, ordered by the Court, or "voluntary," requested at any time by the parties to the dispute.

    In mediation, a neutral third party called a "mediator" helps participants in the dispute create their own resolution. Unlike an arbitrator, the mediator makes no decision or findings about the facts of the case and makes no award. Rather, the mediator helps facilitate a discussion in which the parties reach a mutually agreed upon settlement. Therefore, mediation allows for more creative resolutions to disputes than other ADR processes.

    To accomplish this, mediators foster communication among the parties to:

    • clarify issues, interests and needs;
    • explore the merits of each party's positions;
    • identify possible options for resolution.

    One of the primary goals of mediation is enhancing the future relationship of the parties involved in the dispute, so the process is less adversarial and formal than either litigation or arbitration. For example, the rules of evidence and formal court procedures do not apply to mediation.

    Sometimes mediation does not result in an agreement or resolution. In these cases, the parties have the right to return to court for a litigated decision. If the case returns to court, the mediator cannot be called to testify or produce notes or records of the mediation, as the rules of evidence are not the same for mediation as they are for litigation.

    Mediators are not necessarily attorneys. However, all mediators, including attorneys, have received training or have the experience required by California law to be mediators for the Courts.

    Survey results of participants in mediation consistently demonstrate a high satisfaction rate with both the results of the mediation and with the process itself. Because the resolution is determined by the parties and is not imposed on them, settlements achieved in mediation are upheld easily by the parties, and the agreements reached help to foster future positive relationships.

  • Settlement Conferences

    The third ADR method is called a settlement conference, and, like the other processes, may be mandatory or voluntary. In general, if the settlement conference is mandatory, that is, ordered by the judge, the parties to the dispute and their attorneys will meet with the judge who conducts a conference aimed at negotiating an agreement to settle the dispute rather than going through the formal trial process.

    The Court also offers voluntary settlement conferences, conducted by settlement officers who are either retired judges or highly experienced ADR providers with substantial litigation experience. Like the other ADR processes, the voluntary settlement conference must be held within a time frame set by the Court.

    Unlike arbitration, the settlement officer does not make a decision or an award in the case. Instead, the settlement officer assists the parties in negotiating their own settlement but may evaluate the strengths and weaknesses of the case.

    The agreement reached in a settlement conference may be entered into the Court records.