Home about us services Books, tapes, etc. Dr. Edutainer contact tell a friend
Return to the Home Page
 

Sign up for free

   

     FREQUENTLY ASKED QUESTIONS ~

 Alternative Dispute Resolution FAQ

Mediation FAQ

Arbitration FAQ

 

Alternative Dispute Resolution FAQ

 What Is Alternative Dispute Resolution, known as ADR?

Alternative Dispute 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 ‘win-win’ situations.

 Why Should I  consider so called ADR before Filing A Lawsuit?

A 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 lawsuit. 

 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 receive. 

 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. 

10) 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.

Click here to return to the top

 What Are The Advantages Of Alternative Dispute Resolution?

 The advantages of ADR are numerous and include:

• Savings in legal costs and time • Confidentiality • Flexibility in process • Suitability for multi-party disputes • Practical solutions • Timely Resolution • Decreased stress • Preservation of relationship.

 What Are The Types Of Alternative Dispute Resolution?

 Generally, the types or approaches utilized are:

• Ombudsman /Ombudsperson Mediation. Also includes: Conciliation - Expert Determination - Consensus decision-making

Arbitration • Collaborative Law.

 I’m Confused By Terms ‘Alternative Dispute Resolution’ And ‘Conflict Resolution ?

Unfortunately these terms are used interchangeably and sometimes used inappropriately. To help clarify their use, I suggest the following distinction.

Alternative Dispute 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 decision-maker.

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.

 I’ve Heard That In ‘Alternative Dispute Resolution’ A Neutral Third Party Is Involved?

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 documenter.

 How Do I Decide When To Use ‘Alternative Dispute Resolution’?

A 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 closer relationships.

 How Do I Start The ‘Alternative Dispute Resolution’ Process?

Many 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.

 Have questions or Comments ?

Please direct them to in our attention via email info@mediationJd.com. We will respond in timely fashion via email or website FAQ. Thank you.

Click here to return to the top