Alternative Dispute Resolution FAQ
What Is Alternative Dispute Resolution, known as ADR?
Resolution (ADR) is a cost effective and time efficient method of
resolving current disputes avoiding lengthy and expensive legal
litigation. It keeps matters private between parties, preserves and
possibly improves the disputants’ relationships and creates
Why Should I
consider so called ADR before Filing A Lawsuit?
lawsuit is an adversarial action a threat to someone’s well-being.
Before filing a lawsuit, explore these considerations before and
after seeking professional legal advice.
1) Do you have a good
cause/reason and a good case? Even if you think you have a good
case, take some time to think about whether you can win the lawsuit.
Unless you have another agenda, the intent of filing a lawsuit is to
win and gain a settlement of some kind.
2) Do you have
material evidence to prove your case? Hearsay and speculation are
just what they are. Review the material evidence you will use to
prove your case, including documents, objects, records, witnesses
and so on. Determine whether the evidence you think you have exists
and, if so, determine where it is. Is it in your possession? If not,
do you have knowledge of it’s whereabouts? Do you have access to
it? Is there a chance that the evidence will spoil, decompose,
deteriorate while you are awaiting trial?
3) Determine whether
there are witnesses who will help prove your case. Was there anyone
who observed first-hand to verify the issues of the lawsuit? Are
there witnesses who can testify about the different types of
evidence you will present at trial? Will any of these witnesses be
willing to testify on your behalf or would you have to summon them
to court? Is there a witness that needs protection or is poor health
or is about to move to a different location who would be unable to
testify for you in court? Can you lock in witness' testimony through
an affidavit or declaration?
4) Determine the money
you will need to bring the lawsuit to court. Do you have the money
to pay expenses for filing fees and costs; money to cover earnings
lost while you pursue the lawsuit, litigation-related fees and
attorney fees. Is there anything about your lawsuit that would
qualify you for any aid in paying for representation? Are you
covered by insurance for the matter of the lawsuit?
5) Consider whether
you have the time and physical/emotional energy to pursue a lawsuit.
The average time is 2-5 years from start to finish. Whether or not
you hire an attorney to represent you, you will be either
representing yourself or aiding your attorney in your
representation. Either way, you will have to spend a considerable
amount of time and energy pursuing the lawsuit. Not only will a
lawsuit consume a great deal of your energy, it will also likely be
an emotionally draining experience.
6) Will the defendant
countersue? There is always a possibility if you sue someone that
they will sue you back (countersuit). If this occurs, not only will
you be committing the time, energy, and money to your own lawsuit,
but you will also be spending time, energy, and money defending a
7) Consider whether
you will be able to collect on a judgment if you are successful in
court. It rarely makes sense to file a lawsuit if you know in
advance that it is unlikely you will collect on a judgment. Conduct
an investigation of the party you wish to sue to determine what
types of assets are available to satisfy any judgment you might
8) Check whether your
lawsuit is timely. Certain types of lawsuits must be filed within
certain proscribed periods of time called statute of limitations. If
you are not filing within the proper statute of limitations, your
lawsuit will be dismissed. Check to see which statutes of
limitations apply and whether you are within the proscribed times.
9) Forget Greed and
Revenge. A lawsuit is no guarantee that you have a winning lottery
ticket. A more realistic approach to a lawsuit is for reasonable,
full and fair compensation to allow you to recover all of your past
and future expenses, and compensation for all of your past and
future pain and suffering compensation.
Before you file your lawsuit, make an attempt to settle your
conflict or dispute through effective extrajudicial “alternative
dispute resolution” (ADR) such as
mediation or arbitration.
What Are The
Advantages Of Alternative Dispute Resolution?
advantages of ADR are numerous and include:
Savings in legal costs and time • Confidentiality
• Flexibility in
• Suitability for
• Timely Resolution
• Decreased stress • Preservation of
What Are The
Types Of Alternative Dispute Resolution?
the types or approaches utilized are:
Also includes: Conciliation - Expert Determination - Consensus
• Collaborative Law.
I’m Confused By Terms ‘Alternative Dispute
Resolution’ And ‘Conflict Resolution ?
terms are used interchangeably and sometimes used inappropriately. To
help clarify their use, I suggest the following distinction.
Resolution is used to differentiate between court room litigation from
non-court dispute resolution. Hence, the word ‘alternative’ is
placed before the words ‘dispute resolution’. In modern times, it
has become standard to settle disputes in court and the saying ‘see
you in court’ has become a popular cliché. When we go to court the
outcome is subject to variables out of our control. The empowerment
trend ‘taking back the power from the court into the hands of the
people’ has given re-birth to the term ‘alternative dispute
resolution’. I say ‘re-birth’ because in historical time before
the advent of ‘court room litigation’, disputes were usually
resolved by the parties themselves without the intervention of a
The term ‘Conflict
Resolution’ is becoming more associated with globalization,
urbanization, and community/cultural diversity than between two
individuals. Two individuals generally have a resolvable dispute, not
a conflict. As discussed above, conflicts are issue clashes between
two opposing groups or individuals. Two people with a disagreement
seldom have a conflict unless it involves a serious or
life-threatening issue that is completely non-negotiable. Conflicts
normally are group/community-related where societal pressure and
principles are drawn an ‘initial’ disagreement. Have you ever had
the experience of not liking something but not knowing really why?
Perhaps it is based on hearsay or inherited perceived notions. This is
a good example of how societal pressure and principles work. In a way
we become captive and feel it is our nature without directly
experiencing the ‘initial’ disagreement. This is conflict.
That In ‘Alternative Dispute Resolution’ A Neutral Third Party Is
Yes, that is correct.
Technically, the word ‘neutral’ is generally used to describe that
the ‘third party’ has no vested interest in the outcome of the
resolution and is not directly involved in the disagreement. The term
‘neutral’ is sometimes inappropriately used to replicate the
‘judge’ in court room. However, in alternative dispute resolution,
the third party has no ‘decision making authority’. The third
party assists as the ‘process guide’ steering the parties from
disagreement to resolution. The third party is similar to the
conductor of an orchestra. The conductor does not play the
instruments. The conductor directs. The third party directs, conducts
and guides the dispute resolution process using his/her skills as a
facilitator, negotiator, counselor, agreement documenter and sometimes
adding in a dose of common sense. Only in arbitration and binding
mediation is the third party given permission to make a ‘decision’
as a court room judge would do.
Also, it should be
mentioned that the ‘third party’ is usually a single individual.
It is becoming common practice to have two individuals or a panel of
three acting as the ‘third party’. In this way, the ‘process’
is conducted with expanded neutrality. The theory is we are all biased
in some way. Individuals have has their own unique viewpoints, past
experiences and filters through which they see the world around them.
In a pure sense, it would be idealistic to say that ‘anyone’ can
be ‘truly neutral’. However, with two individuals or a panel as
the ‘third party’ the probability of neutrality in enhanced, plus
the parties gain more insight and knowledge from different individuals
sharing the roles of facilitator, negotiator, counselor, and agreement
How Do I Decide When To
Use ‘Alternative Dispute Resolution’?
good rule is: If you wish to maintain a relationship with the other
party either directly or indirectly, you should consider
‘alternative dispute resolution’ as your first course of action.
Heading into the court room may seem powerful and persuasive; however
it is threatening and adversarial and does little to maintain or build
How Do I Start The
‘Alternative Dispute Resolution’ Process?
businesses and medical professionals are adding ‘alternative dispute
resolution’ clauses into their agreements and contracts. If you have
a written disclosure or contract, check if there is an existing
clause. If so, there may be procedures you need to follow. If your
written agreement is without an ‘alternative dispute resolution’
clause or written agreement, please contact an ADR Professional.
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