Due in large part to the high cost and long delays of litigation, alternative dispute resolution (ADR) has become a lynchpin of the litigation process, both before, during, and sometimes even after trials. A successful ADR process is generally quicker and more cost effective than trials. Some trial courts now have mandatory mediation prior to trial, and most others have a voluntary program. Even appellate courts encourage mediation prior to a full appellate review. Most states now have procedural and regulatory statutory schemes relating to ADR.
There are several forms of ADR which will be briefly discussed below.
Mediation: This is a facilitating process in which the parties to the litigation agree on the selection of a mediator. The parties generally submit confidential settlement statements to the mediator prior to the scheduled mediation. No formal testimony or documentary evidence is introduced, but generally the parties are given an opportunity to make any statements they wish to make and submit to the mediator, in advance of mediation, any documents they wish the mediator to review. After an initial joint session, the mediator usually separates the parties and works as a facilitator to try to bring the parties to agreement. The mediator has no authority to compel a settlement or any form of agreement.
Collaborative Divorce Procedures: Collaborative Practice is a dispute resolution process by which couples choose to separate and/or divorce outside the traditional adversarial court-based litigation method. It involves a specially trained group of collaborative professionals who offer clients the opportunity to work through separation, divorce and other matters within a model characterized by respectfulness, integrity and cooperation, with the intent to facilitate deep and durable legal, financial and emotional outcomes that they can both live with. Other unique aspects of Collaborative Practice include the following:
- Team based approach involving attorneys, mental health coaches, child development specialists, and financial experts.
- The process supports cooperative co-parenting arrangements that help manage the effects of divorce on your children, protecting their best interests, preserving healthy attachments, and seeking the emotional well-being of the entire family.
- The process can often be less costly than the traditional, adversarial model.
Arbitration: There are several forms of arbitration commonly in use:
- Non-binding arbitration is a process where the parties select an arbitrator who conducts a full hearing and hears live testimony and reviews documentary evidence. The arbitrator then makes an award which may or may not include findings of fact. The award then is a guide to the parties to help them try to come to a voluntary agreement. The award is not binding on any of the parties and is simply advisory.
- Binding arbitration is a process where the parties again choose an arbitrator, or in some cases, multiple arbitrators. The arbitrators conduct a hearing which includes presentation of live testimony from all the parties and the introduction of documentary evidence from both sides. The arbitrator or arbitrators then make findings of fact and an award. The award is absolutely binding on the parties once the award is filed with the appropriate court and confirmed by the court pursuant to statutory proceedings. Prior to agreeing to binding arbitration, the parties, especially in personal injury litigation, are encouraged to reach a high-low agreement. If the arbitrator’s award is below the low agreed upon, the defendant pays the plaintiff the agreed-upon low number. If the arbitrator’s award is above the high agreed upon, the defendant pays the plaintiff the high amount. If the arbitrator’s award is anywhere in between the low and the high, the parties have to accept the arbitrator’s award.
- In so-called “baseball” arbitration, an arbitrator is chosen and hears testimony from the parties and reviews any documents submitted. Each side submits, either prior to or after the hearing, a proposed number which they believe is a reasonable award. The arbitrator has very limited discretion to the extent that he or she can choose one or the other but nothing else. There are two types of baseball arbitration: In day baseball arbitration, the parties submit their last best award to the arbitrator. The arbitrator is aware of the proposed award and chooses the award that is considered most appropriate. In night baseball arbitration, the process is the same except the proposed awards submitted by the parties are kept confidential from the arbitrator until after the decision is rendered. The submitted award that is mathematically closest to the arbitrator’s award then becomes the binding award.
Clients have control of their own decisions and agreements, while the professional Team provides guidance through legal, parenting, and financial questions and the collaborative decision-making process.
Arbitrators and mediators are specially trained and experience in the various forms of ADR. Attorneys who handle collaborative practice likewise are specially trained.
McCandlish & Lillard lawyers who are experienced in arbitration and mediation procedures are: