The criminal law revolution of the 1960s and the intricacies of domestic and civil practice have created a crisis in our courts. Pre-trial maneuvering, motions for new trials and post-conviction statutes have congested the criminal docket. Yet, most types of litigation can be arbitrated or mediated, saving substantial time and money and avoiding endless hours of discovery, protracted trials and adverse publicity for all involved.
Alternative dispute resolution (ADR) is the only situation in the legal system where one can pick the judge, the date, the time and the forum to resolve a dispute. Below is an overview of the two forms of ADR: arbitration and mediation.
- In open-end arbitration, the arbitrator acts as a judge, hearing a case without a jury. The parties submit a dispute for a decision which can relate to liability or damages. The arbitrator's decision is binding on all parties, with no right of appeal.
- Often known as "baseball arbitration," this procedure calls for both parties to present a reasonable sum with the purpose of convincing the arbitrator that his or her position is the correct one. The arbitrator must choose one of the proposed amounts and cannot use any figure in between.
- The most effective type of arbitration, and the one that most parties prefer (because they are protected from any unusual awards) is the high/low arbitration. Both parties agree to limit their risks by setting in maximum and minimum ranges within which the final award must fall. A plaintiff agrees to accept a minimum amount and the defendant agrees to pay a maximum amount. Any figure that is awarded between those amounts is binding.
If the arbitrator goes over the maximum, the defendant is protected and is required to pay only the agreed high figure. Even if the arbitrator goes below the minimum, the plaintiff receives the minimum amount in the high/low agreement. The parameters of the award are not revealed to the arbitrator before considering the case.
- In mediation-arbitration the parties first agree to have their dispute mediated. After a certain amount of time, they can agree to allow the arbitrator to arbitrate any unresolved issues. The parties can agree in advance that if they cannot mediate the dispute within a certain period of time, it will be submitted to a different individual to arbitrate and reach a binding arbitration.
Sometimes, the parties can agree that if they cannot reach a decision through mediation they can agree or disagree to use the same mediator and allow him/her, based on the testimony and documents presented, to reach a final decision as an arbitrator.
Because arbitration is generally voluntary, the parties are free in the absence of statutory authority or a contractual obligation to decide on variations of the rules and procedures prior to submitting to arbitration. This flexibility makes arbitration the most popular choice among the various forms of ADR.
Mediation is a process whereby litigants appoint a neutral third party to act as adviser in settlement negotiations. Unlike arbitration and other means of adjudication, the parties retain complete control over the mediation proceedings.
Typically, the parties do not submit evidence or provide witnesses; instead, they exchange information informally and often make witnesses available to each other. The mediator does not make findings of fact or law, but meets individually or jointly with the parties to get them to resolve their disputes.
ADR IS THE ONLY
situation in the legal system where one can pick the judge, the date, the time and the forum to resolve a dispute
The mediator usually does not decide issues, but may help to define and redefine issues. If the mediator is unable to resolve the parties’ disputes, they are free to litigate in the court system or attempt a different ADR method.
Mediation can be especially helpful in complex litigation where it becomes difficult for the parties to separate themselves from the emotions of their case. In these situations, the parties have nothing to lose by submitting to mediation, which has no binding effect unless a mutually agreed upon settlement is reached.
Alternative methods of dispute resolution work and are clearly the waves of the future. Apparently, with no end in sight to the horrendous increase in criminal case loads, the only way to resolve the civil litigation backlog is through these other methods. In fact, the success of the ADR system has led the American Bar Association to suggest that all attorneys be ethically required to advise clients about arbitration and mediation.
A former Circuit Court judge, the Hon. Paul A. Dorf is a member of the law firm of Adelberg, Rudow, Dorf & Hendler, LLC (ARD&H). He devotes his practice to family law, litigation and alternate dispute resolution, and conducts arbitrations and mediations in both civil and domestic disputes.