What is ADR?
ADR stands for Alternative Dispute Resolution, it is another way to resolve a dispute between individuals without being involved in a long, taxing court case. Mediation is one of the many forms of ADR.
Mediation is where the people involved in a dispute have a 3rd party intervene either at their own behest or because of a suggestion from a lawyer or judge. The mediator works with the people involved to attempt to come up with a solution that is beneficial to all parties involved. Mediation is a less costly, less time-consuming practice than a court case, and typically results in a better final outcome for everyone involved. The mediator will do their best to try to have the parties involved come to an agreement, though if one cannot be reached, the people involved may still pursue a court case.
Alternative Dispute Resolution or ADR includes several different forms of conflict resolution that don’t result in going to trial. The purpose of ADR is to successfully resolve conflicts and increase the tools already available for peacefully resolving conflicts.
Some of the methods of ADR include: arbitration, collaborative or cooperative law, early neutral evaluation, family group conferencing, mediation, mini-trial, parenting coordination, private juggling, sentencing circles, special master, summary jury trial, and judicial settlement conferences.
The two most frequently used methods in the above list are mediation and arbitration. Arbitration is the more limited option of the two, since the arbiter makes the final decision after the two parties involved have discussed what resolution would be best. In mediation, the parties involved make the final decision.
In 1998, a law was passed regarding ADR, called the “Alternative Dispute Resolution Act of 1998, which is what federal courts function under in order to increase ADR efforts. The limit for cases being eligible for mediation is $50,000 or less, so this somewhat limits the amount of cases that can use mediation. The California code of civil procedure section 1775-1775.15 deals with civil action mediation and states, “In the cases of many disputes, litigation culminating in a trial is costly, time consuming, and stressful for the parties involved. Many disputes can be resolved in a fair and equitable manner through less formal processes. Alternative processes for reducing the cost, time and stress of dispute resolution, such as mediation have been effectively used in California and elsewhere…Mediation may also assist to reduce the backlog of cases burdening the judicial system.”
What are the benefits of ADR?
Time: ADR takes much less time than a trial or lawsuit, which can take years. ADR only takes months, sometimes only weeks.
Money: Parties don’t have to spend money on court fees, attorney fees, and other expenses associated with litigation.
Increased Control: Parties have much more control over the decisions reached than they would in a court case.
Preserve relationships: Relationships between parties don’t suffer as much through mediation as they may with a trial.
Increased Satisfaction: There isn’t the typical winner/loser outcome that comes with litigation; both parties can leave mediation as winners.
Improve Attorney-Client Relationships: Clients tend to have better relationships with attorneys who seem to be putting their needs and satisfaction first.
Court mediation has expanded and developed all over the country, as have the resources to improve programs that promote mediation. When mediation first began, a lot of attorneys were resistant to the idea of having the parties themselves with the assistance of a mediator settle the case out of court. And why wouldn’t they be hesitant to embrace the idea?
Mediation takes away from attorneys winning cases in court which is not only good for their bank accounts, but also for their reputations. Chief Just Burger states, “The entire legal profession—lawyers, judges, law professors—has become so mesmerized with the stimulation of the courtroom that we tend to forget that we ought to be healers of conflicts…Our system is too costly, too painful, too destructive, and too inefficient for a truly civilized people.”
Most cases that are filed don’t end up going to court but end up in settlement because the cost of actually going to trial is far more than most people or companies are willing to pay, which is one of the reasons that mediation has become such a popular choice. Since mediation is rapidly growing, “Many judges still take the time to mention ADR/mediation from the bench.” and “The CRC 3.221 requires all California Superior Courts to provide an ADR package with every case filing.”
Attorneys have a more personal relationship with their client than the judge does, in the sense that they spend more time with their client and are supposed to have their best interest in mind while acting as their attorney, so it would make much more sense for the clients’ attorney to mention mediation than it would to have the judge mention it to them.
Attorneys have a responsibility to discuss the option of ADR/Mediation with their clients. Attorneys will most likely still be resistant to mediation because of the potential loss in income for them, but at least some of them will come to see that their first priority is their client’s happiness.
With the alternative of using mediation compared to a long, costly trial, it is difficult to believe that there are still cases that go to trial.
ADR has now become the ‘norm’ instead of the alternative to a court case, and it is expanding every day.