What are the types of ADR, and can any of them help me?
There are three main kinds of ADR currently being practiced in the legal field today: (1) Mediation; (2) Arbitration; and (3) Collaborative law. [There is also a fourth type not as widely known that is used primarily in minority indigenous communities, called "talking circle" or a similar name that involves family, friends and/or leaders of the community getting together with a person who is causing trouble or persons who cannot get along, to help them learn more peaceful, respectful ways of interacting with each other and the world at large.] What they all have in common is offering another option for litigants or potential litigants that is of the "kinder, gentler" school of thought; that is, a less formal, more laidback approach that focuses on practical solutions rather than punishment or a winner-loser mentality. Because the participants feel that their beliefs and feelings are respected and listened to, the results tend to be longer lasting.
Mediation can be court-sponsored or private. Either way, it involves the two or more opposing parties (people, organizations, what-have-you) getting together in a room (generally not a courtroom) with a third-party independent; that is, someone trained to moderate the discussion and try to help the parties reach mutually beneficial outcomes but not force anyone to take a position they are not comfortable with. It may include opportunities for break-out sessions in which each party confers privately with the mediator and/or their counsel (if they are represented by an attorney or attorneys) and/or close family member(s) or friend(s) who have come along to support them through the process. There is no one right way to do mediation, but the overriding emphasis is always facilitating respectful, positive communications designed to get the parties to a resolution of their dispute(s), or as close as possible on as many aspects as possible.
You may have heard the term "binding arbitration" or maybe "mandatory arbitration." The first refers to the idea that whatever the arbitrator/arbiter decides has the force of a court order. The second refers to a clause in a contract or other agreement in which the parties agree that if there is a dispute they will submit that dispute to an arbitrator for resolution as a first step rather than going to court right off the bat. This is a legal term and often is inserted in the fine print in contracts that individuals are asked to sign or otherwise enter into with big corporations. (So, word to the wise: ALWAYS READ THE FINE PRINT!) Having arbitration as a required first step (or mediation, for that matter) is not necessarily a bad thing. Statistically the majority of disputes are resolved this way, avoiding the much more time-consuming and costly route of a judicial proceeding. However, non-binding arbitration rulings are appealable to a court of law.
Collaborative law is the newest and perhaps most intriguing type of ADR. Based on a "team" concept, It is no longer "you" or "me"; it is simply "we." Collaborative law involves "partners" with the parties. A number of different kinds of professionals besides attorneys may be drawn into the process, such as mental health providers (typically dubbed "coaches"), child-development specialists, financial experts and/or whatever other team members the parties agree will be both beneficial and affordable. One of the most interesting aspects is that the attorneys must sign an agreement that they will both withdraw from representation if the parties decide they want to take their dispute to court. This creates an incentive for the parties to stay engaged in the process until its logical conclusion so that they don't have to "start all over" re-explaining their situation and positions on each and every issue to new attorneys while simultaneously dealing with the more adversarial court process.
So which one should I choose?
It depends on what your needs are and whether the choice has already been made for you via a judge's order or written contract. It also depends on whether you and your "enemy" can "play nice" enough to solve your problems without a judge. For a great many people and situations, though, a less confrontational way to resolve disputes that respects the dignity of the players as human beings who just happen to disagree on something is almost always going to result in better, more satisfying outcomes. So give it a try! There are plenty of attorneys who offer ADR services, including many who practice exclusively in ADR and some of whom even have a bar-approved specialization certification in this area of law. Best of luck to you and yours.
The future of ADR
Although traditionally ADR has been seen most commonly in family law (particularly divorces) it is becoming increasingly popular in other kinds of civil disputes as well. For obvious reasons, it still is not used to a great extent in criminal law, because of the rather serious public-safety concerns and consequences/punishment goals in that arena. However, alternatives to traditional criminal court proceedings, such as deferred sentencing for completion of probation or drug rehab for nonviolent crimes, are starting to gain traction there too. When it comes to the future of ADR, the sky is really the limit. Wherever the need for alternative dispute resolution presents itself, ADR will simply grow and expand to fill the demand.
This legal guide should not be construed as formal legal advice or the formation of a lawyer/client relationship.
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