Skip to main content

Alternative dispute resolution

An alternative dispute resolution solves your legal issue outside of court. The most common alternatives are mediation and arbitration.

William Benjamin King | Mar 22, 2019

What is Alternative Dispute Resolution (ADR)?

Introduction. Colorado domestic relations courts often require some form of alternative dispute resolution (ADR) to occur prior to proceeding to trial in divorce proceedings and allocation of parental responsibility cases—this typically is done by way of mediation. If you are represented, or if both parties are pro se, you can greatly benefit from having a skilled mediator that can facilitate the settlement of your case in a beneficial fashion for both parties without the need to resort to litigation. Colorado courts are now frequently requiring mediation to occur even prior to setting a temporary orders hearing. This legal guide discusses various forms of ADR, which may be utilized to help achieve settlement in your case or offer a procedural mechanism to utilize in lieu of appearing in court. Mediation. Mediation may be particularly useful when parties have a relationship they want to preserve and children they must continue to effectively co-parent once the divorce is finalized. Thus, when family members have a dispute, mediation may be the best ADR process to utilize. Mediation is also effective when emotions are getting in the way of resolution. An effective mediator can hear the parties out and help them communicate with each other in an effective and nondestructive manner. Attorney mediators also posses the ability to draft legally binding Settlements, Separation Agreements, and Parenting Plans, which may assist you with avoiding a hearing altogether. To note, non-attorney mediators are not able to draft legal documents. Mediations are typically scheduled for a half-day or a full-day in domestic matters. For mediation to occur, both parties are typically separated in separate conference rooms and a neutral third-party mediator (typically a retired Magistrate, Judge, or family law attorney) transitions between the rooms in an attempt to broker a mutually beneficial settlement for the parties. Anything said at mediation is typically considered a settlement offer protected by C.R.E. Rule 408 and cannot be discussed in the unfortunate event the parties reach an impasse and must later proceed to trial. In the event an agreement is reached, a Memorandum of Understanding (MOU) is usually drafted to memorialize the parties' agreement for filing with the Court. The terms of the MOU are typically later incorporated into both a Separation Agreement and Parenting Plan. During mediation only the parties can themselves reach agreements as to some or all of the issues in their case. Arbitration. In arbitration, a neutral person called an "arbitrator" hears arguments and evidence from each side and then decides the outcome of the dispute. Usually, arbiters are retired Judges or former Magistrates, but they can also be family law attorneys too. Arbitration is generally speaking less formal than a trial, and the rules of evidence are often relaxed. An added benefit to selecting an arbiter with family law experience is you avoid being assigned a magistrate or judge new to the domestic relations bench that may be lacking experience. Arbitrations are typically hosted at one of the lawyer's offices or the arbiter's office. The arbiter will typically issue a written decision on the issue, which is then filed with the Court. In the event you disagree with the arbitrator's award, you may appeal for a de novo hearing in the district court, but whether a new hearing occurs is left to the discretion of the presiding finder of fact. Med-Arb. Med-Arb is a hybrid form of alternative dispute resolution, which uses elements of both mediation and arbitration. During Med-Arb, In the event mediation fails, the mediator immediately goes into the role of arbiter to make a decision for the parties on a specific set of issues. Thus, parties are guaranteed a resolution either way in the event mediation is unsuccessful. This prevents duplicative legal fees and travel time. Med-Arb is also likely more expedient than engaging in motion practice with the Court and setting the matter for trial. Settlement Conferences. These settlement conferences may be either mandatory as Ordered by the Court, or voluntary. In both types of settlement conferences, the parties and their attorneys meet with a neutral person called a "settlement officer" from our office to discuss possible settlement of their dispute. The settlement officer does not make a decision in the case, but rather the officer assists the parties in evaluating the strengths and weaknesses of the case and in negotiating a settlement. Settlement conferences are appropriate in any case where settlement is an option.

Eric Brian Swartz | Sep 26, 2018

Mediation & Dispute Resolution For You

What is Mediation? Mediation is a form of Alternative Dispute Resolution (*ADR*). Mediation is a process led by a mediator who is not *for* or *against* any person, but who is trying to help people in a dispute get the dispute resolved. Unlike arbitration (another form of ADR) or court action, a mediator will not issue a decision that the people in a dispute have to live with. A mediator helps the people in a dispute reach a resolution that the people in the dispute can accept, or reject. There are no forced resolutions in mediation. The choice to resolve a dispute, and how, is always left to those who are participating in mediation. People in a dispute choose to participate in mediation voluntarily. They do so because they care about getting their dispute resolved and see mediation as a better alternative to spending a lot of money fighting in court and turning the resolution of their dispute over to lawyers, judges and juries. There are different types of mediation styles used by mediators. Some styles are better for some disputes, and other styles are better for other types of disputes. Mediation styles include evaluative * where a mediator helps people in a dispute evaluate aspects of their dispute; facilitative * where a mediator is there to help encourage people in a dispute move toward a mutually agreeable resolution; and transformative * where a mediator works to turn a conflict into peace. There are even blends of mediation styles and mediation styles that do not have official names. And, there*s the No Lawyers Allowed mediation way * which is beyond anything that has existed to date. Whatever you call a particular mediation style, mediation is a blend of the art of dispute resolution and a commitment to a civil society. It is an alternative to going to court which is expensive, time consuming, and forces people to air their dirty laundry in public. Mediation is a process designed to help people in a dispute get it resolved quickly, cost-effectively, and as part of a confidential process that takes place without the public peeking in. * Mediation is a very effective dispute resolution tool for many reasons. It is cheaper, quicker, and will always result in an outcome that is more *fair* than a court decision or jury verdict will ever be. It also beats dueling with pistols or fist-fighting in the street. * Our court system is said to be the best in the world. But, it should be your last resort. It is your dispute. Who better to decide how to get it resolved than you? Mediation assists you with that. The alternative is turning your future over to lawyers, judges, and a jury. And, at that point, you get what you get. You lose all control over how your dispute is resolved. And, it will take forever and cost a lot money. * A No Lawyers Allowed mediation gets you on track towards a quick resolution, and in a cost-effective manner. A No Lawyers Allowed mediation eliminates many of the barriers to resolution. The alternative to No Lawyers Allowed mediation (i.e., lawyers and courts) helps keep those in the mediation process committed to reaching a resolution. There are no *winners* or *losers* in mediation. Those who can reach a r What is No Lawyers Allowed Mediation? A No Lawyers Allowed mediation gets you on track towards a quick resolution, and in a cost-effective manner. A No Lawyers Allowed mediation starts with someone - anyone - registering a dispute with No Lawyers Allowed. How it Starts - The Dispute Gets Registered You do not have to be involved in a dispute to register it. Anyone can register it on the No Lawyers Allowed Website (or button below). The Invitation to Give Mediation a Shot Goes Out The people or businesses involved in a registered dispute will receive an email inviting them to give mediation a shot. If they agree, they get an Agreement to Mediate right then and there on-line. They review and sign the Agreement to Mediate right then and there on-line. They then get an invoice to pay their portion of the mediation process fee right then and there. They then get their access to mediation preparation materials through the member portal. After everyone Agrees to Give it a Shot - It Is Time to Prepare for Mediation With access to the member portal, the mediation participants will have access to multiple mediation preparation sessions designed to help people and businesses in a dispute get ready for their mediation. There are written materials, videos, and audio materials. It is all on-line and you can access it at your convenience - whenever, wherever - as long as you have internet access. Plus, work through the sessions at your own pace, but the sooner you get through them, the sooner you get to mediation. After completing the preparation sessions, we will help you prepare your mediation statement. Again, it is all on-line. Easy. We break it down and walk you through it. The mediation statement is confidential. Two people will see it - you and the mediator. It is designed to help the mediator understand your dispute and the dynamics at play. The mediation statement is your chance to be open and honest with the mediator. The more honest you can be in your mediation statement, the more the mediator will be able to assist with getting the dispute resolved. Once all people or businesses in the dispute have completed their training and submitted their mediation statements, they will all get an on-line invite to a group calendar to identify the dates and times that best work for scheduling the actual mediation date. When commonly available dates and time are identified, mediation is scheduled. What to Expect on Mediation Day On the day of mediation, you will arrive on-time, confident and prepared, educated and motivated, and organized and committed to resolving your dispute - all without the costs of lawyers being involved. Your professional and trained mediator will greet you, confirm that they reviewed your mediation statement, and start working to get the dispute resolved. The mediator will work with those in the dispute separately - as in everyone has their own room where they can speak to the mediator privately. The mediators will move between the rooms to help all involved work toward a resolution. When you reach a resolution, the mediator will work with you to prepare a Resolution Agreement. It will be an enforceable contract.

Lance Alen LaBelle | Feb 9, 2018

Early Mediation: Eliminating the Risk of a Prevailing Party Attorney Fee Award

That is exactly the point. Both sides are probably looking at significant litigation expense. Isn't that reason enough to consider the idea of early settlement discussions? But there is more to consider. What about the potential for a prevailing party attorney fee award in the case? California follows the American Rule of no attorney fee shifting. In the absence of a governing contractual provision or statute, each party pays for their own attorney fees and costs. CCP ?1021. But the rule has many exceptions. Many contracts and statutes provide for a prevailing party attorney fee recovery. For example, real estate contracts often provide for the recovery of prevailing party attorney fees in a suit brought under the contract. See also Civil Code ?1942.4 providing for a fee recovery in a landlord/tenant habitability dispute. These are just a couple examples of the many provisions that allow for such an award. Various contracts and statutes may also bar such a recovery to a prevailing party who does not first attempt to mediate the dispute. Ultimately, while one party may benefit from a recovery of litigation fees and costs, the other party suffers a substantial detriment in having to pay the prevailing party's fees and costs. However, the question of who is the prevailing party is often complicated. What if a party prevails on some claims but loses on others? For example, a plaintiff might prevail on a singular cause of action for unfair business practices, recover little or no compensatory damages, yet still be entitled to a significant attorney fee award. There is also much uncertainty in terms of how a judge or arbitrator will rule on the motion for fees. What amount will be awarded as reasonable and necessary? Also, in California, where there is an Offer to Compromise under CCP 998, a non-accepting party may be responsible for an offering party's post-offer attorneys fees. Judges and arbitrators have broad discretion in ruling on these issues and the results are often unpredictable. ...is the award collectible? Even if a party is successful in obtaining a prevailing party attorney fee award, is the award collectible? California insurance law, under some circumstances, afforded coverage for a prevailing party fee award as a recoverable "cost" under the Supplementary Payments section of a Comprehensive General Liability policy. Prichard v. Liberty Mutual Ins. Co., (2000) 84 Cal. App. 4th 890; State Farm General Ins. Co. v Mintarsih, (2009) 175 Cal. App. 4th 274. Recently issued insurance forms removed coverage... However, more recently issued insurance forms have removed coverage for prevailing party attorney's fees as an item of recoverable costs under the policy. Without insurance coverage, what assets are available to collect on the award? If there are limited assets available for collection, or alternatively, the client's assets are exposed, could that result have been avoided with an early settlement? The lesson - properly evaluate litigation risk The lesson here is that it is important to properly evaluate litigation risk in terms of the ability of one party or another to shift fees and costs. This leads us to one of the key advantages of early mediation, i.e., the opportunity to settle before fees and costs substantially increase. Without question, the expense of several days of mediation pales in comparison to the cost of courtroom litigation. In mediation, the parties and counsel work constructively towards resolving their dispute as opposed to scorched earth litigation tactics designed to make things expensive for the other side. Mediation presents predictable expense, and the prospect of a negotiated resolution is within the control of the parties in contrast to the uncertainties presented by courtroom litigation. Conclusion No doubt there will be some fees and costs already incurred by the parties even in an early mediation, and that may impact the negotiations in terms of what the parties decide to offer or demand. But the overall stakes only increase over time, especially where one party or another may ultimately bear responsibility for an award of prevailing party attorney fees. The above is not to suggest that early mediation is always the answer. Some disputes are not ripe for an early mediation. The parties may have differences that make early settlement unlikely. Some cases may require discovery, or a court ruling on a dispositive motion, to move the ball forward. But quite often, the fee shifting component, and uncertainties related thereto, should incentivize the parties to work towards an early mediation of their dispute.

Kevin Scott Neiman | Nov 19, 2017

Alternative Dispute Resolution Methods for Bankruptcy

Mediation Mediation is one of the most common methods of solving disputes outside of court. Mediation implies negotiating in the presence of a neutral intermediary who facilitates the discussions and helps the parties reach a mutually beneficial agreement. The mediator has different duties throughout the procedure: - Evaluates and determines the nature of the issues - Proposes and analyzes various agreement options - Explores each case scenario and its consequences - Talks to each party and help them understand the other party's perspective A company can resort to mediation at any time, and it is a less expensive and time-consuming method than bankruptcy. Conciliation Through conciliation, the parties also try to solve their disputes by appealing to an external party which is called a conciliator. The decisions made by this neutral party don't have a binding role. The conciliator comes forward with different settlement options, and the parties have the freedom to choose the solution they find more appropriate. Conciliation also entails a negotiation and deliberation phase. The purpose of conciliation is to help the parties reach an agreement by themselves; according to the provided solutions. Conciliation offers a lower flexibility degree compared to mediation. Arbitration By arbitration, the parties agree to allow a neutral third-party to solve their disputes. This person is called an arbitrator, and he or she has the authority to impose their decisions. During arbitration, both parties have the chance to be heard. The arbitrator's role is to take into account all the arguments and reach a court-enforceable decision. Arbitration offers a series of benefits: - It provides faster resolution than bankruptcy procedures - Unlike court hearings, the arbitral discussions are not publicly disclosed - The parties have the right to select the arbitrator - The process is flexible as the parties can establish the procedural rules Arbitration is more formal than mediation and conciliation, and companies often choose this method when the options above have failed. Arbitration may be the best solution when the parties need someone else to decide for them. Early Neutral Evaluation Early Neutral Evaluation (ENE) is available in the first stage of the dispute. Through ENE, the parties choose the procedure that will help them reach an agreement. The parties appoint an external evaluator. This person's role is to evaluate the dispute and provide conclusions that will play an important role later in the negotiations. ADR methods allow a company to be more involved in the decisions regarding their debts. To know which one of these alternatives could work better for your business, you will need to get in touch with a commercial lawyer who can assess your case and advise you.

Scott Maxwell Chapman | Nov 16, 2017

Five Tips for Family Law Mediations in Harris County, Texas

Know what to expect. Mediation is an informal way to resolve disputes. In mediation, the parties engage an impartial facilitator (the mediator). Unlike a trial, there are no evidentiary objections and the parties are usually situated in different rooms. The mediator's job is to start a problem-solving dialogue, explore alternatives, and encourage reality-testing. While parties can be ordered to participate in mediation, the parties are free to partially settle or altogether refuse to settle the case in mediation. Understand the numbers. You have likely heard that few cases go to trial these days. That is true in all areas of law, including family law. Statistically speaking, most family law cases settle. If you rely on numbers alone, you should seriously consider the likelihood that your family law case will settle in mediation. Understanding the importance of mediation is the first step in a successful mediation. Decide what is important to you and adequately prepare. Mediation requires preparation. You would not make a decision about your pension without doing research or taking notes. Write down a list of specifically-defined goals in your family law case. Rank your goals in order of what is most important. Consider the value system of your opponent, what they would likely want, what they might care less about, and why. Committing your thoughts to paper will get you in a negotiating mindset and generate insight. Be courteous and committed to the process. If you have children, you will likely have to deal with your ex for years to come. Even if you do not have children, you and your ex likely share common friends and acquaintances. The question is not whether you must treat each other with civility. The question is: when will you extend the olive branch? Mediation is an opportunity to change the tide. Capitalize on your experience, even if mediation fails. Sun Tzu once wrote, "If you know the enemy and know yourself, you need not fear the result of a hundred battles." Sometimes mediation efforts fail and a trial becomes necessary. If that happens in your case, remember that valuable insight may be gained in mediation.