OTHER FORMS OF ADR
Alternative Dispute Resolution
Following are some procedures you might consider:
Arbitration: This is similar to a court trial, but less formal. It can be binding or non-binding, depending on the agreement of the parties. The arbitrator takes evidence and decides the matter for the parties. Historically, arbitrators were people knowledgeable in the trade or industry involved in the dispute. They took a more equitable approach with less reliance on strict rules of evidence and procedure. Now, even though the arbitrator may be an attorney or retired judge, he/she need not follow strict rules of evidence and can rule on legal issues based upon equitable principles. There is virtually no appeal, so the procedure is usually efficient and final. The advantage of arbitration is that a resolution is guaranteed. The disadvantage is that, similar to a trial, the parties have no control over the resolution and there is little room for a creative resolution.
Mediation: The parties themselves come to an agreement on how to resolve the matter. The mediator makes no decision on the case, but simply assists the parties in communicating. A purely facilitative mediator expresses no opinion on the matter. An evaluative mediator will express opinions and perhaps advise the parties on ways to resolve the case. A good mediator will use a little of each approach at the appropriate time. The advantage is that the parties control the resolution and there is no limit to creativity in the resolution. The disadvantage is that there is not guarantee of resolution. (However, effective mediations result in resolutions around 95% of time.)
Settlement conference: More evaluative than mediation. A sitting judge normally deals just with the attorneys, not with the clients. Pressure of impending trial may help, but oftentimes it also results in buyer's remorse. Judge's rulings on pre-trial motions may also facilitate resolution.
Early neutral evaluation: Similar to arbitration, but abbreviated and non-binding. The neutral usually gives an opinion on the value of the case and may suggest approaches for settlement or assist the parties in scheduling discovery.
Hi Lo arbitration: The parties agree, before arbitration, on the minimum and maximum award. The arbitrator's award must fall within those figures. Arbitrator may or may not know the limits. If the arbitrator's award exceeds either of the limits then the award is modified to the closest limit. This assures a resolution, but limits the exposure of both sides.
Baseball arbitration: This is a take off on Hi Lo arbitration. Parties state their best offers and submit argument and evidence to support their respective positions. The arbitrator is limited to selecting one of the positions. This forces both parties to make offers as reasonable as possible. Consequently, the process often results in a negotiated agreement between the parties.
Night baseball arbitration: Same as above, but the arbitrator is not told of the parties' exact positions. The arbitrator's decision is then rounded to the nearest position. Thus this differs from Hi Lo arbitration in that the award must ultimately be stated as one of the polar positions rather than just within the parameters of those positions.
Tiger's win-win golf arbitration: As far as I know there is no such thing, but if you hear of any new procedures, let me know.
Mini trial: Each counsel presents his or her case in an abbreviated form to a panel constituting decision-makers from all sides of the case. The panel members then engage in negotiations facilitated by a mediator. The advantage is that it educates the decision-makers to all aspects of the case so it increases the potential for success in the mediation phase. The disadvantage is that it is time consuming.
Summary jury trial: Similar to “mini trial” but case is presented to a unbiased jury of people unrelated to, and unfamiliar with, the case. The presentation may consist of some form of abbreviated evidence or may even be limited to attorney argument. The purpose is to obtain general impressions of jurors and jury as a whole. Very seldom used because it is burdensome to organize and may not be reflective of a full trial.
Private jury trial: There are providers that will obtain jurors, facilities and a private judge and staff similar to a public courtroom. The advantage is that there is control over the availability of the judge and timing of the proceeding. The disadvantage is the cost.
Med/arb: A normal mediation is conducted and if the case is not resolved the mediator thane becomes an arbitrator and decides the case. The advantage is that there will be a resolution. The disadvantages are many. The parties may be reluctant to give their best offers, knowing they will have to arbitrate in front of the same neutral. The parties may also spend their time trying to figure out how the mediator will decide the arbitration phase and attempting to influence that expected decision. Inadmissible material may be disclosed during the mediation phase and improperly influence the arbitrator's decision.
Arb/med: A normal arbitration is conducted. The arbitrator makes a decision, seals it and then conducts a mediation. The disadvantage is that it takes longer and the “arbitrator” may not be ready to make a decision on the spot. The disadvantage is that it may put the mediator in difficult position because he/she has already formed an opinion on the value of the case. The advantage is that the mediator has evaluated the witnesses and can much more authoritative in stating an opinion of witnesses' credibility. The other obvious advantage is that, as with Med/Arb, the case will be resolved.
Med/aolo (Mediation with Arbitration On Last Offers): The mediator conducts a mediation with a prior agreement that, if the case does not settle, the mediator becomes an arbitrator. Depending on the agreement, the mediator must select the most reasonable of the last offer or demand or a number in between these two last positions and the parties will be bound by that selection. The advantage is that it gives the parties a chance to settle their own dispute and great incentive to do so. The disadvantage is that the mediator should reveal all confidential information and allow responses before making the arbitration decision.
See California Practice Guide: ADR (The Rutter Group)
for additional information on this subject.
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