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| "... remember benefits rather than injuries, and benefits received rather than benefits conferred; to be patient when we are wronged; to settle a dispute by negotiation and not by force; to prefer arbitration to litigation..." |
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—Aristotle |
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When negotiations between parties fail, or are
not even considered, the first impulse is often to, “Hire
a lawyer and sue!” This is almost always a very costly
decision in terms both of time and money. Many individuals and businesses have begun to
look at other options. We provide these other options;
we resolve conflicts through ADR. When litigation has already been initiated, we facilitate negotiations between parties to achieve effective and economically efficient solutions, sometimes as neutral mediators and sometimes as settlement counsel.
When arbitration has been agreed to or mandated, or forms of ADR other than mediation have been selected, we act as mediators, neutral fact finders, or in other roles as ADR professionals.
The founder's grandfather, Otis Murray (seated right), reaching consensus
on the trail on the Roan Plateau – Colorado, circa 1908.
Overview
of ADR Services
Alternative dispute resolution (ADR) refers, literally,
to resolving disputes by means other than filing a lawsuit or, if a lawsuit has been filed, by resolving the matter without going to trial. The term commonly is associated with “arbitration”
or “mediation” but is actually much broader. It
describes a range of processes, methods and strategies for
resolving conflicts without resorting to the very costly process
of litigation and trial in the courts.
The best time to resolve a dispute is before it
escalates into a lawsuit or, if a lawsuit has already been initiated, at the earliest possible point in the litigation. Before hiring, “the meanest,
toughest, gunslinger trial lawyer" you can find, consider talking with a
lawyer who is not just familiar with ADR but who practices
ADR. Or, if a lawsuit is already pending, consider hiring
ADR Counsel to assist in resolving it.
Other ADR services range from neutral fact finding,
to facilitative mediation, to evaluative mediation, to non-binding
arbitration or mini-trials, to binding arbitration. Our ADR
services also include designing and implementing conflict
management systems and training. Our services are described
below:
Dispute Resolution (DR)
or "Settlement" Counsel
"If the only tool you have is a hammer,
you tend
to see
every
problem
as a nail."
—Abraham Maslow
Settlement Counsel or DR Counsel is a relatively
new area. Although many litigators and trial lawyers have
experience – or even a great deal of experience –
in settling cases, few have training in ADR and fewer still
look at a dispute first as an opportunity to bring parties
together and resolve the conflict rather than as an opportunity
to file a lawsuit.
In addition, when a dispute has escalated into
a lawsuit, many experienced trial lawyers believe that the
only way to bring the other party to the table is to inflict
some pain – send interrogatories, gather thousands of
pages of documents, depose witnesses, file motions, hire a
battery of experts and force the other side to its knees.
This method can be effective, but it is very costly. When parties and counsel are in the
heat of battle, however, they are not in the best position
or frame of mind to evaluate the case for settlement or to
negotiate an agreement. Many litigants are turning to DR
Counsel to provide a “fresh look” and to represent
them in negotiations. The benefits are many – an experienced
DR professional whose ego is not tied up in “winning”
may more realistically evaluate the case or provide a new
perspective; the litigation team, although working closely
with the ADR Counsel, is not distracted by the settlement
process; the DR Counsel will bring more dispute resolution
skills and experience to the table than can most trial lawyers;
and, the client will save time, money and energy by getting
the dispute resolved more quickly and, often, on terms more
favorable to all parties.
An attorney serving as DR Counsel actively represents
only one party through the process of resolving the dispute
or lawsuit and is not neutral.
Neutral
Fact Finding
Conflict is often the result of misunderstanding,
misinformation, or a lack of information on one side or the
other. When parties are in conflict, but not in active warfare,
one option is for them jointly to retain an ADR professional
to conduct a neutral investigation, determine the facts and
thereby help facilitate a resolution.
In neutral fact finding, the ADR professional is
not representing either party and is only trying to determine
the facts, not decide who is right or wrong.
Mediation
Mediation can mean different things to different
people. Many lawyers think of mediation as a "settlement
conference." In fact, the term mediation refers to a
much broader set of processes by which a neutral third party
works to facilitate negotiations between disputing parties
in order to reach an agreement and resolve the dispute. There
are many "styles" of mediation, from non-evaluative
to arm-twisting to authoritative, and different cases require
different approaches. The more and varied skills the mediator
brings to the process, the more value to the parties.
A mediator is neutral and does not advocate for
either party. The mediator also does not decide who "wins,"
but only tries to bring the parties to agreement on a resolution
of the dispute. Mediation is non-binding.
Mini-Trials
Between mediation and arbitration lies a range
of processes that may be referred to as mini-trials. The mini-trial
is conducted by a neutral ADR professional, but the parties
may structure the format however they desire. There may or
may not be an exchange of information and briefs, the mini-trial
may consist only of summary arguments or may include limited
testimony or experts reports, or the parties may design a
different system. Generally, however, the ADR professional
is expected to make a reasoned determination as to the probable
outcome following the mini-trial. The decision, however, is
generally not binding. The ADR professional's determination is often instrumental in helping the parties reach agreement. The parties may also have management representatives observe at the mini-trial and then participate in a mediation session.
Non-binding Arbitration
Non-binding arbitration is a more formal process
than mediation or neutral fact finding, and includes a limited
exchange of information between the parties followed by an
arbitration hearing. Although the process may vary depending
upon what the parties may desire, generally the arbitrator
does not have ex parte communications, may allow limited motions,
and presides at the hearing. Following the hearing, the neutral
arbitrator generally issues a decision as to who wins and
who loses. The process is similar to a trial, although less
formal, and the decision is not binding upon the parties.
The process is less costly than litigation and the decision
of the arbitrator, although non-binding, is often instructive
and instrumental in resolving the dispute.
Binding Arbitration:
Arbitration is generally binding and is entered
into by agreement of the parties – an agreement usually
reached well before the dispute arose. While the parties may
have some flexibility as to how the arbitration process will
proceed, the parameters generally have been agreed to in advance
of the dispute.
Generally, as with non-binding arbitration, there
is a limited exchange of information between the parties during
a discovery period, followed by an arbitration hearing. Although
the process may vary depending upon what the parties may desire,
the arbitrator will not have substantive ex parte communications,
may allow limited motions, and will preside at the hearing.
Following the hearing, the neutral arbitrator issues a decision,
called an award, stating who wins and who loses. The award
may explain the bases for the decision or may simply state
who wins and how much – depending upon the parties desires
as to the form of the award. The process is similar to a trial,
although less formal, and the decision is binding. The prevailing
party may proceed to court to enforce the award, and the court
generally has very little discretion to do anything but enter
the award as a judgment of the court.
The process may be conducted by one or more arbitrators,
as the parties may agree, and a three arbitrator panel is
not uncommon. The arbitrator is neutral (except that sometimes,
with a panel of three arbitrators, two of the arbitrators
may not be neutral). The appeal of arbitration is that it
is less costly than litigation et the decision of the arbitrator
is final and binding, just as if the parties had gone to court.
EDR Systems
". . . ‘cause I
haven't got time for the pain,
haven't the room for the pain."
—Carly Simon
ADR Source also assists businesses
in analyzing and setting up conflict management systems for the early identification
and treatment of disputes (EDR)—a legal triage system—
and in coaching legal and lay personnel in ADR and EDR methods
to avoid or to resolve conflict. Quite simply, the more disputes
and conflicts that are resolved or avoided through ADR/EDR,
the more value that is created for the business through savings
of time, energy and money—and the better the solutions
that are achieved.
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