Alternate Dispute Resolution (ADR)
Larry Maxwell’s legal career spans five decades. From 1962 to 2002, he was engaged in a trial and appellate practice in state and federal courts. His forty years of litigation experience were interesting and rewarding. However, over the years he has come to realize that in most situations, litigation should be the last choice for resolving disputes, after other alternative methods have been tried without success.
Beginning in 1985, he expanded his practice to serving as a third party neutral, and counseling clients in the use of Alternative Dispute Resolution (ADR) processes, which can be tailored to a clients’ needs in the context of the unique characteristics of their dispute.
In the mediation process a neutral person, the mediator, meets with the parties in a private, confidential setting to assist the parties in settling their dispute. The parties are in control of achieving a mutually acceptable settlement. The mediator may suggest ways of resolving the dispute, but will not impose a settlement upon anyone and will not act as an advocate for any party. Parties may or may not be represented by counsel. Before a suit is filed, parties may voluntarily agree to mediation. In a pending suit the court may order parties to mediation.
Over the past twenty-five years, mediation has become the ADR process of choice. Most courts routinely refer cases to mediation and some courts require the parties to mediate before obtaining a trial setting. The process has proven to be effective in reducing over-crowded court dockets; and, because the parties themselves actively participate, there is usually a high degree of client satisfaction with any settlement reached and with the mediation process.
The idea of resolving disputes through negotiation and dialogue is certainly not new to lawyers. In 1850, Abraham Lincoln in his Notes for a Law Lecture, advised young lawyers:
Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be enough business.
Arbitration is private and confidential and can be a faster, more efficient and less costly alternative to litigation. Before entering into an agreement to arbitrate, the parties will agree that they will be bound by the decision of the arbitrator(s), or that the decision will be only advisory in nature. If the parties agree in advance that they will be bound by the arbitrators decision which is called an “Award” it is enforceable in a court of law. As in litigation, parties are generally represented by counsel.
Non-binding arbitration is a forum in which each party and their attorney present the position of the party before a mutually agreeable impartial third party or a panel usually consisting of three arbitrators. The arbitrator(s) render a decision which is not binding on the parties and serves only as a basis for further settlement negotiations. Frequently, the non-binding opinions of arbitrators influence parties to settle their disputes.
Several years ago, United States Supreme Court Justice Sandra Day O’Conner set forth the proper function of the courts and an appropriate timeline for resolving disputes:
The courts of this country should not be the place where resolution of conflict begins. They should be places where disputes end, after alternate methods of resolving disputes have been considered and tried.
Collaborative Law Practice – Crafting Creative Solutions
The collaborative dispute resolution process (sometimes referred to as Collaborative Law) is a process for parties represented by counsel. It is a structured, voluntary, non-adversarial approach to resolving disputes wherein parties seek to negotiate a resolution of their dispute without having a ruling imposed upon them by a court or arbitrator. The process is based on cooperation and team work, full disclosure, honesty and integrity, respect and civility and parity of costs. Parties engage in interest-based negotiations as opposed to positional or rights-based bargaining.
The process offers a safe and dignified environment to reduce tension and conflict. Specially trained collaborative lawyers support and guide parties in reaching respectful and lasting agreements.
Should the dispute not be resolved in the process, the collaborative lawyers must withdraw and cannot represent their clients in any adversarial proceeding involving the collaborative matter. This core element of the collaborative process enables the parties and their lawyers to devote all of their time and energy to resolution of the dispute.
Collaborative Law has it’s roots in family law. The collaborative process is expanding beyond family law. Creative lawyers across the country and worldwide who are trained in the process are assisting clients in resolving disputes in many areas of civil law. For more information and resources on Civil Collaborative Law, visit the websites of the Global Collaborative Law Council and the International Academy of Collaborative Professionals.
Over the next generation, I predict, society’s greatest opportunities will lie in tapping human inclinations towards collaboration and compromise rather than stirring our proclivities for competition and rivalry. If lawyers are not the leaders in marshaling cooperation and designing mechanisms that allow it to flourish, they will not be at the center of the most creative social experiments of our time.
– Derek Bok, former Dean of Harvard Law School and President of Harvard University