A Brief Guide to Alternative Dispute Resolution
Using Arbitration, Mediation and Negotiation to Avoid the Time and Cost of Litigation
© C.S. Clarke, Ph.D., 1998
One of the major improvements to our access to the legal system has been the growing movement away from the nightmare of litigation and toward alternatives. Everybody seems to be benefiting from the new practices -- even attorneys! I attended a continuing education "marathon" last August led by the founders of Coast To Coast Mediation and came to appreciate the value of ADR.
•Time: Instead of the many months or years that litigation can take, the alternatives can be speed demons. You can select an arbitrator who can fit you into a schedule that best suits you, if you are arbitrating. If you are mediating or negotiating, how long the process takes depends entirely upon how fast you can come to an agreement with the other party(ies) involved.
•Cost: Since the process is shorter, even when attorneys are involved (and they aren't always) professional fees are less. Because in most cases you don't go to court, there are often no court fees. Even in divorce cases, where there will be fees for filings with the court, often there are no actual court appearances required of the principals in the case. That keeps court costs down. Arbitrators are much less expensive than judges and mediators even less so.
•Personal Power: In mediation and negotiation, all decisions are made by the principal parties. No one acts as a judge. There is no jury to convince. Anything that results is entirely a matter of your agreement. No one else tells you what you must do. In arbitration, the arbitrator acts as a judge and if it is "binding arbitration," the decision is the same as if you went to court. However, unlike litigation, in arbitration the process is fairly informal, you don't need to have an attorney and you get to choose an arbitrator you prefer.
•Relationships: Litigated disputes are adversarial. Each opposing party arms itself with attorneys, evidence, arguments and ideas of damages and goes to war. The courtroom is the battlefield. The object generally becomes one of "destroy the opposition." By the time litigation is finished, any chance of a continuing or future relationship between parties is almost nil. Alternative dispute resolution requires some level of cooperation between parties, often resulting in a willingness for them to deal with one another cooperatively in the future. Perhaps to do business with one another again. Arbitration can be less adversarial, especially in the presence of an arbitrator who has mediation experience and knows how to get the parties working toward the resolution the arbitrator sees as the most fair. And, of course, the parties in a dispute choose the arbitrator. Also, principals in arbitration so often represent themselves. That means that they must personally deal with the "opposition" rather than through agents. In mediation and negotiation, the whole process is about working out agreements with the other parties involved. A great deal of cooperation is required. Quite often "friendly relations" can be restored.
•Personal Satisfaction: The more personal power you have in the final outcome, the greater satisfaction you are likely to have. In particular in mediation and negotiation where there is no judge or arbitrator to decide the final resolution for you, you are likely to be best satisfied with your outcomes. After all, even when you make agreements to do things you'd prefer not to do, you agreed, no one forced it on you.
OF SPECIAL NOTE: Alternative Dispute Resolution can be done on the Internet. While this option is not recommended for divorce and other family matters, many business and consumer issues, especially involving parties residing in or doing business in different states, can be arbitrated, mediated or negotiated on the net (at least in part). Listed below under Resources are links to some service providers already doing that kind of work.
Definitions of Alternatives:
•Arbitration: In arbitration, both parties usually agree on an "arbitrator," an individual who will act very much like a judge but who will operate under more relaxed rules of procedure and evidence. Often, the arbitrator will be a retired judge, but an arbitrator can be anyone the parties agree to choose. The procedures are sufficiently informal that the principal parties may represent themselves and dispense with attorneys. In many ways, it is similar to going to small claims court. However, the dollar amounts involved in arbitrated disputes can be a great deal more than would be litigated in small claims court. (Sometimes, depending upon the previously agreed upon structure of arbitration, there may be more than one arbitrator. For detailed information on arbitration, contact the American Arbitration Association.)
•Mediation: A mediator takes the place of an arbitrator in the mediated dispute, but plays an entirely different role. A mediator remains neutral in every way including in opinion on the outcome. That is to say, a mediator makes no decision; he or she helps both (all) parties to the dispute through the process of negotiation. We generally say a mediator "facilitates" the process. And, in fact, the primary difference between mediation and simple negotiation is the presence of that experienced facilitator. Go to resources below to find more information.
•Negotiation: You may wish to dispense with the services of pros and simply sit down with the other party to your dispute and try to work out a solution. However, by the time most people get to the point of a dispute where they are considering formal legal proceedings or alternative dispute resolution, they are too angry and stuck in their own positions. If you'd been able to do simple negotiation, you'd have already done it and wouldn't be thinking about the legal system. Nevertheless, you can still save a lot of time, money and personal anguish by employing attorneys or professional negotiators to represent you in formal or informal negotiations that can offer a solution by "diplomacy" rather than "war." After all, isn't this what you do when you have an accountant represent you at a tax audit? If you would like to avoid getting to the litigation point when disputes arise or learn to be a good negotiator for additional reasons, there are any number of good resources for learning negotiation skills.