What is ADR?
Mediation brings people in conflict together with a neutral third person who assists them in reaching a mutually-agreeable settlement. The mediator helps them clarify the issues, consider options, and reach a workable agreement that fits their needs. Most mediations end with a written agreement that outlines all the details of the settlement. A signed agreement is a binding legal contract.1
Arbitration is the submission of a dispute to one or more impartial persons for a final and binding decision, known as an “award.” Awards are made in writing and are generally final and binding on the parties in the case.2
Other ADR Methods
- Settlement Conference
A settlement conference is a process in which a neutral third party trained in the law listens to the arguments of the parties and offers his or her opinion on the case. A settlement conference can be held in front of a judge (who won’t preside at any later trial) or may be done outside the court system. The difference between this and mediation is mostly style ? a mediator would help parties bargain with each other; in a settlement conference the third party would help the disputants analyze the issues and evaluate their positions in their case. The opinion they get often helps them resolve the issues before trial. Settlement conferences can be used in simple or complex cases and can be combined with mediation.
- *Med-ARB *
This is a combination of mediation and arbitration. It works best when participants have about equal bargaining experience. It can be used when a negotiated but quick settlement is needed. A neutral and impartial third party serves as both mediator and arbitrator. The third party tries to facilitate communication between the parties as in mediation. If this fails, testimony is given by the parties and the neutral third party then issues a binding decision. In situations where the parties have an ongoing relationship, such as family or labor disputes, this method can help the parties preserve their relationship by promoting voluntary communication and settlement, with arbitration only being used to decide those issues upon which the parties cannot agree.
- Early Neutral Evaluation
In ENE, an evaluator is appointed by the court or chosen by the parties. The evaluator usually has substantial experience in cases similar to the parties’ case. In an evaluation session, the evaluator will meet with the parties and their attorneys and help them to simplify the case, for example, by discarding issues not worth pursuing and agreeing upon pretrial procedures. If desired, the evaluator can try to help the parties reach settlement. The method is confidential, non-binding and is done early in the lawsuit. It is usually used in large, complex cases.
A mini-trial, which is often used to resolve complex litigation, combines elements of other ADR methods. In a mini-trial, lawyers from each side present an abbreviated version of their cases to a panel made up of a representative from each side and a neutral member. After hearing the presentation, the party officials conduct settlement negotiations, helped by the neutral panel member. In a mini-trial, both sides get to see the strengths and weaknesses of their cases. It’s non-binding and the goal is to help settlement negotiations between top officials of the parties. This method is especially helpful in large cases where negotiations are stalled and participants need to see for themselves the strengths and weaknesses of their cases.
- Summary Jury Trial
This is the only ADR method where a case is presented to a jury. The goal is to show both parties what a typical jury would decide, hoping that this will help them settle. It is used in complex cases. This method can be voluntary, but usually happens as a result of a motion by one or all litigants or by the court. When the court orders this, parties select six jurors from a panel of 10 to 12. After brief questioning, the jurors are ready, but they may not be told this isn’t a “real” trial. They hear and consider brief presentations of the evidence and closing arguments and render a verdict. Using the verdict, parties can assess their cases and use the information for settlement negotiations.3