ADR

Most courts encourage, or require, the parties to engage in pre-trial dispute resolution. Courts afford the parties considerable discretion in choosing an appropriate dispute resolution process. There are lots of good reasons to get the parties together at this point, even though, obviously, they could not agree before. By now, the parties have a whole lot more information about the strengths and weaknesses of their respective cases. They have now observed the witnesses under oath. Sometimes management feels very strongly about their position. For this reason, when management first investigates the facts, lower level employees may feel under pressure to avoid bringing out weak points in the company's case. If an employee made a mistake, the employee may fear bringing out the truth would result in demotion or dismissal. As the day of reckoning nears, sometimes lower management or employees directly involved may "fess up" and disclose those weaknesses. Also, each of the lawyers learns way more about the case; the court may have ruled adverse to their original positions; they may re-evaluate and urge clients to settle.

Alternative dispute resolution brings the clients together in light of these new circumstances for one last shot at avoiding a trial. Lawyers know that trials involve risk. Judges and juries are people. People are unpredictable. They sometimes make inexplicable decisions. Settlement puts the clients in control of the ultimate result. This doesn't mean that parties should always settle. Sometimes your adversary is just plain unreasonable. Sometimes a company must establish a principle in order to prevent other future similar claims. Sometimes a party needs to know what the law is, so it can adjust future conduct accordingly. Cases belong to the client, and ultimately the decision to settle belongs to the client.

As with all settlement negotiations, the statements and positions of the parties may not be used in future proceedings, as evidence against either party. For example, if a plaintiff has sued for one million dollars, and offers at mediation to take one hundred thousand, no one can later tell the jury that the plaintiff didn't really believe his case was worth a million dollars. If a party admits that he may have been speeding in mediation, then that admission cannot be used against him before the jury.

Here are some of the alternative forms of ADR:

Mediation: A third party meets with the clients and attorneys and seeks a settlement. Mediators approach this process in different ways. Some mediators are non-directive. They merely facilitate communication. Other mediators are aggressively directive. They push, cajole, convince and persuade, leaving no stone unturned until every last possible avenue for settlement has been explored. Most lawyers prefer aggressive mediators. They want the mediator to be pushy. Most lawyers prefer mediators with special experience in the area being mediated; the mediator uses that experience to give the parties valuable information about their prospects.

Mini-Trial A mini-trial allows the parties to present their evidence in an abbreviated practice trial. Sometimes they use a small jury; sometimes they use a single person as a pretend-judge. At the end, the jury or judge renders a verdict, which is not binding on the parties. Because the trial is abbreviated, sometimes the "losing" party rationalizes that a real trial would have gone better. Or, the party may use the result to redouble the effort to make the trial go better. In larger cases, where persons remote from the trial are making the decision, and where large amounts are in controversy, the mini-trial can persuade decision makers to settle.

Binding Arbitration. The parties can agree to binding arbitration, thus diverting the case from a jury trial to single shortened trial. An arbitration takes far less time, and typically costs way less to prepare. Also, an arbitration decision is generally non-appealable, so the parties obtain finality. If the parties agree to arbitration, their lawyers prepare a submission agreement to govern the arbitration procedure.

Collaborative Mediation. The parties mediate without the mediator. The lawyers and clients meet, avoiding the additional expense of the mediator, and attempt to settle. There is a national group of lawyers who use this procedure in divorces with some success.

Judicial Mediation. A judge or magistrate conducts the mediation. Federal courts commonly use United States Magistrates for this purpose, often to great effect. The fact that The magistrate is an officer and representative of the court system is beneficial in some cases. the magistrate may have developed familiarity with the case as a result of conducting pre-trial proceedings. Some judges excel in mediating the cases over which they are presiding. Most judges will not mediate their own cases, unless the parties all want the judge's involvement, because the judge will be reluctant to create the impression that the court might punish a party for failing to settle.