The Different Types of Alternative Dispute Resolution

Waiting for your court date for resolution on a dispute? Going to court can be a time-consuming and expensive way to come to resolution.

There are a few common alternatives to settle legal matters outside of court. These options, appropriately called alternative dispute resolution, are beneficial in more ways than one. Alternative dispute resolution (ADR) options allow all parties involved to save on the expenses, time and uncertainty associated with a traditional court hearing.

Alternative Dispute Resolution Options

There are several ADR processes. Of these, two of the most well-known ADR practices are mediation and arbitration.

Lesser-known or less common forms of ADR include:

• Summary jury trials
• Minitrials
• Early neutral evaluations
• Collaborative law

What is Involved in Mediation?

A trained, neutral professional mediator works with both parties to resolve a dispute. It’s important to note that a mediator can only facilitate an agreement that is ultimately reached by the parties. A mediator cannot impose or order a judgment if the parties do not agree on how to resolve their dispute.

The mediator acts as an neutral go-between. They use their skills to:

• Help both sides find potential agreement or resolution possibilities
• Understand what may happen next should both parties do not reach a voluntary agreement
• Help both sides realize they may have points of mutual agreement

In a successful mediation, the parties will reach an agreement on most, if not all, their disputed issues. If a mediation is not successful, all or part of the dispute may go to court. 

What is Arbitration?

When arbitration is the agreed-upon form of alternative dispute resolution, both parties have agreed to have their dispute settled by a neutral arbitrator. Generally speaking, the parties will have a say in choosing who acts as their arbitrator.

Unlike a mediator, who does not have the power to impose a decision on both parties, an arbitrator can issue a final, binding decision. Less commonly, the arbitration will involve a non-binding decision. The parties will know what type of arbitration they are undertaking before the process begins.

Arbitration has a lot of similarities to an actual civil court hearing or trial before a judge. Both parties present their arguments to a neutral party, making a legally enforceable decision by which both parties must abide.

Private Arbitration

Private arbitration also is referred to as contractual arbitration and is a common ADR practice.

Upon signing the contract, both parties agree to its terms. An included clause spells out exactly how to address any potential disputes. It also typically names the individual already selected to serve as the arbitrator should the need arise.

Some states require the satisfaction of specific qualifications before someone may serve as an arbitrator. Any person may act in this role if both parties agree they are knowledgeable and capable of resolving disputes fairly.

Judicial Arbitration

In cases where disputes exceed the maximum allowed amount in small claims but do not meet the minimum required for civil court, statute or court rule might mandate judicial arbitration.

The judicial arbitration ADR process is usually non-binding, which means that while the arbitrator makes a ruling, neither side legally is required to accept it. If either party disagrees with the arbitrator’s decision, the case can still go to court.

Mediation-Arbitration

There is also an option called mediation-arbitration which combines the processes of mediation and arbitration. First, the parties will work to negotiate an agreement, facilitated by a neutral mediator. At some point, if the parties reach an impasse, the matter may then become an arbitration, either binding or non-binding. Alternative dispute resolution allows for flexibility and the parties to create the process that they will follow.

Summary Jury Trials and Mini Trials

Summary jury trials and mini trials allow the parties involved to understand their weaknesses and strengths by presenting their arguments to an advisory panel of jurors. Resolutions can then be reached by taking the advisory jury’s findings and using that as a starting point for negotiations.

Summary jury trials are typically used as an ADR process in federal court cases. The attorneys for each party give shortened presentations to a six-member jury chosen from a pool of real jurors.

Mini trials have proven to be useful in many instances, such as product liability and high-dollar construction contracts. Rather than taking place in court, the mini trial is carried out before representatives from both sides. In most cases, they are business executives from the companies involved.

Both summary jury trials and minitrials are attractive ADR methods because they can be completed – and a resolution reached – long before a traditional court hearing would be able to be held.

Early Neutral Evaluation

Early neutral evaluations are required in some jurisdictions. This informal process allows both sides to present their case to an neutral intermediary, whose job is to present each side with a breakdown of strengths and weaknesses and help find common ground. A successful early neutral evaluation may end in negotiations and ultimate resolution of the matter.

Is ADR Right for You?

Holding out for a formal trial and going through the full court process is often just as expensive as it is time-consuming for both sides. Talk to your attorney if you are interested in learning more about the various ADR methods. Opting for an alternative dispute resolution method can save you time, expense, and provide you with certainty in your dispute compared to going to trial.