Overview  

We are familiar with all aspects of alternative dispute resolution, also known as “ADR” for short.  More and more disputes are being resolved through alternatives to traditional litigation.  Litigation isn’t always the most appropriate option for resolving problems.   

Where litigation is inadvisable or avoidable, we often recommend some form of ADR.  In ADR processes, we assist our clients as their counselors, advisors and advocates trying to minimize our client’s dispute-related risks.

The remainder of this page will answer frequently asked questions concerning ADR and will discuss the principal types of ADR, including negotiation, mediation, neutral evaluation, mini-trials, focus groups, and arbitration.   

If you would like to speak with a lawyer about a particular case requiring ADR (for example, where ADR is required under a contract) or would like to speak with a lawyer about a particular that case you would like directed to ADR, please do not hesitate to Contact Us. 

What’s ADR?  

There’s a lot of confusion among the general public about what ADR is.  In a nutshell, ADR simply refers to a number of processes available to resolve conflicts, disputes or claims.  They are “alternatives” to court. 

Over the last decade, these “alternatives” have grown tremendously popular as companies (and their lawyers) look to resolve disputes without resort to litigation.  There are many reasons for this.  Generally, ADR is much less expensive than traditional litigation in state, federal or foreign courts. 

ADR can also be much faster than litigation.  While litigation may last for several years, or much longer in the event of any appellate process, ADR processes rarely last years.  For example, a mediation may last for several hours or days, or an arbitration proceeding may last for several months. 

Another key advantage of ADR is that certain ADR processes are “non-adversarial.” These non-adversarial processes allow companies to resolve disputes on acceptable terms without permanently damaging their relationship with one another. In traditional litigation, two companies litigating their dispute would be considered “adversaries,” with the expectation that one company will ultimately “win” and the other company will ultimately “lose.” For certain ADR processes, like negotiation, facilitation, and mediation, these same companies might be considered “partners,” rather than “adversaries,” with a common goal - the resolution of a dispute on terms acceptable to all parties, without “winners” or “losers,” with both companies preserving their business and social relationships with each other. 

Another advantage of ADR is that it is often less formal and more flexible than traditional legal processes, like litigation.  Moreover, certain ADR processes provide the participating parties with control over the ultimate outcome of the underlying disagreement, whereas in litigation the ultimate outcome is left in the hands of a judge or jury. 

Where does ADR take place?  

Litigation takes place in a forum called a “court.”  That court may be a state, federal or foreign court.  Often, ADR takes place in an entirely different forum.  In fact, there are many forums available for the resolution of conflicts, disputes and claims through ADR. 

Organizations providing forums for ADR include the American Arbitration Association (AAA), National Arbitration Forum, the International Court of Arbitration of the International Chamber of Commerce (ICC), the International Institute for Conflict Prevention & Resolution (CPR), the  London Court of International Arbitration (LCIA) and JAMS, to name just a few.  Each forum has its own, unique procedures.  As a general rule, these procedures are more flexible than the procedures governing court proceedings. The American Arbitration Association (AAA) has offices through the United States and, through its International Centre for Dispute Resolution (ICDR), it is a popular forum for resolving domestic disputes as well as international disputes.  The American Arbitration Association (AAA) has offices in many U.S. cities, including offices in San Francisco (which service Northern California, including the San Francisco Bay Area and Silicon Valley, as well as Hawaii), Los Angeles and San Diego.  The ICC and the LCIA are also popular forums for resolving international disputes. 

What are the different types of ADR?

Negotiation

Very generally, negotiation is an informal, voluntary process through which parties identify their differences and then seek to resolve those differences through compromise.

Unlike mediation, there is no neutral person to assist the parties.  However, it is common for lawyers to participate in negotiations as “skilled negotiators” attempting to secure their clients’ objectives.  While at first blush, negotiations may appear to be mere discussions.  They are not.  Negotiations involve careful evaluations of the parties’ respective differences, interests, requirements, and objectives.  Negotiations require thoughtful preparation and planning, particularly when the stakes are high. 

To complicate matters for unrepresented parties, skillful negotiators often use various tactics to advance their own agenda or their clients’ agenda, tactics such as time-targets, time-manipulation, extreme demands, ridiculous offers, silence, outrageous behavior, body language, posturing, intimidation, good-guy/bad-guy routines, limited-authority routines, take-it-or-leave-it routines, caucusing, walking-out, red herrings, trial balloons, low-balling, and bait-and-switches, to name a few.  Some tactics are ethical.  Others are not.  It’s important, however, to recognize commonly used tactics and it’s equally important to know strategies for responding to them.    

Moreover, it’s important to understand what type of negotiation one is participating in.  Is the ultimate goal of the negotiation a win-win compromise?  Or is the ultimate goal a win-lose compromise? These questions and many others affect how parties should prepare for and participate in any negotiation. 

Mediation

Like negotiation, mediation is an informal and private process. Moreover, a good deal of “negotiation” takes place during mediations.  And, like negotiation, mediation allows parties to structure their own solution to a dispute.  There is one critical difference between standalone negotiation and mediation: in mediation, a neutral person (the mediator) assists the parties in their negotiations.  The mediator cannot bind the parties to any settlement.  Mediations are not “decided.”  The mediator merely attempts to facilitate settlement. However, where mediated settlements are reached, it is common to document such settlements with binding contracts called settlement agreements. 

There are a number of ways mediation may proceed.  The mediator often conducts a preliminary “joint session” with the parties to discuss procedures, ground rules, and agendas and to allow the parties to make preliminary statements.  While the mediator may conduct the mediation entirely as joint sessions, it is common for the mediator to separate the parties and conduct “private sessions” after a preliminary joint session.  In fact, the mediator may spend a great of time shuttling back and forth between the parties in a form of “shuttle diplomacy” and in private sessions.  Where the mediation is being conducted largely through private sessions, from time to time, the mediator may nonetheless ask the parties to rejoin each other in an occasional joint session to discus certain matters.  Moreover, if legal counsel represent the participating parties, which is common, the mediator may at times meet with counsel alone, without any parties present.  Throughout the mediation, often in private sessions, the mediator commonly expresses opinions, about the strengths and weaknesses of the parties’ positions and may gauge the parties’ likelihood of success should the dispute proceed to arbitration or litigation (sometimes called “evaluative mediation”). There is no specific “routine” for mediation. However, the mediator’s ultimate goals always remains the same: to facilitate the parties’ negotiations and help the parties explore settlement options.  Importantly, the mediator never advocates for any of the parties.  The mediator merely helps the parties identify common ground to assist the parties with resolving their dispute on their own terms.  Often, mediators are adjudicators and former judges with tremendous experience resolving disputes – regardless of his or her background, a good mediator lends thoughtful perspective and guidance for the parties’ negotiations. 

Neutral Evaluation

Neutral evaluation, like negotiation and mediation, is a non-binding process. In neutral evaluation, the parties to a dispute select an experienced neutral, such as a former judge or adjudicator (or even a practicing lawyer) and then submit relevant facts and legal issues to the selected neutral for evaluation.  The neutral assesses the relative strengths and weaknesses of the parties’ respective positions and predicts possible outcomes should the parties proceed to court or arbitration.  The neutral’s analysis may help the parties reach an acceptable resolution.  

Mini-Trial

A mini-trial is a private and consensual process. It is non-binding. Importantly, in appropriate cases, the mini-trial can be an effective form of ADR.  The process was developed in response to business needs and is particularly suited to businesses. 

In a mini-trial, the parties’ lawyers make brief presentations of the parties’ cases as if at a trial.  These presentations take place before a neutral advisor and representatives of each side (often senior-level executives). After the presentations, the representatives meet privately and attempt to resolve their disputes.  If they are unable to do so, then the neutral advisor may act as a mediator or may even issue a non-binding opinion about the possible outcome of the parties’ dispute should the parties proceed to litigation or arbitration.

Focus Group

A focus group is a consensual process.  It may proceed very much like a mini-trial, but without the neutral advisor.  After the parties’ lawyers make brief presentations before the parties and the focus group, the focus group provides feedback and options for resolving the parties’ dispute.    Even though their feedback is non-binding, it can be very helpful in driving settlement discussions and in resolving cases. 

Arbitration

Unlike the above-discussed ADR processes, arbitration is often conclusive.  In arbitration, the parties submit their dispute to an arbitrator. Unlike mediation, an arbitrator acts as an adjudicator rather than as a facilitator.  The arbitrator’s job is to hear the parties’ arguments, review the parties’ evidence, and issue an arbitration award, which should be based on solid legal principles. 

Some arbitration awards simply proclaim the decision (a “bare bones” award), and others give reasons (a “reasoned” award). The award is typically final, enforceable and unappealable.  Generally, it can be enforced very much as a judgment from a court can be enforced. 

 If you have a particular legal need that involves ADR, do not hesitate to Contact Us to discuss our possible involvement.