WHAT'S ADR?

"ADR" is short for Alternative Dispute Resolution. But an "alternative" to what?

Disputes between people have been around for as long as humans have communicated. And disputes have been resolved one way or another for that long too. As relationships, communications and disputes have gotten more complex, so has humanity's methods of resolving them.

In American culture, dispute resolution has evolved so that the terms "litigation," "courts," "juries," "judges," "plaintiffs" and "defendants" are all familiar terms. Perhaps too familiar!

If you "take someone to court," you can count on not having a better relationship with the parties with whom you're fighting after the brawl in court. And you can count on being "happy" with the decision on average 50% of the time. After all, on average, in court only 1/2 of the parties "win." Even a "win" ignores the long-term consequences of a long and bitter fight.

In recent years, we have discovered an increasing need for alternative methods of dispute resolution; ones that are less costly, less risky, allow for creative solutions, and create a foundation for the participants going forward. We tend to call these alternatives to litigation forms of "alternative dispute resolution" methods, or "ADR."

The Different Forms of ADR

There are several different types of ADR. They include:

1. Conflict Avoidance ("if I don't pay it any attention, then there's no conflict").
   
   
2. Informal Discussion and Negotiation ("let's talk about it; we can work something out"). All legal options are available and discussions are limited only by the creativity of the parties.
   
   
3. Mediation ("let's talk about it with a neutral person who can help us figure out a solution"). This has the same flexibility as #2, but with more structure and more formality. Progress is more likely and the result has a greater chance of mutual compliance.
   
   
4. Neutral Evaluation ("let's take this to a neutral person who will give us an opinion about who's probably right--or at least who's likely to win"). An evaluator gives an opinion on what's likely to happen if litigation is pursued. This can make negotiation and mediation processes more informed for all participants.
   
   
5. Arbitration ("let's take this to a neutral person who will tell us who wins"). An arbitrator makes a decision for the parties. This process is generally faster and less expensive than litigation. The formalities in the process are often defined by the participants. Sometimes one arbitrator is used; sometimes there are three.
   
   
6. Public Decision-Making (adminstrative, judicial, legislative). This can include a legislature passing new laws, an administrative body creating new directives, or a judge/jury deciding the outcome of a dispute. Traditional Litigation fits in this category.
   
   
7. Extra-Legal Measures, generally coerced, possibly illegal, maybe violent ("my way or the highway").
   

You probably noticed that, as you work your way down the list, the opportunity for self-determination decreases. Indeed, everything from "Neutral Evaluation" down includes increasing amounts of coercion and an increasing likelihood that the result will include one side "winning" and the other "losing."

Also, beyond "Mediation" the parties leave their fates in the hands of others.

Choosing the Right Form of ADR

With all these choices, how can you pick a forum that's best for your dispute?

Generally, a process which results in a self-determined solution has a greater chance of being acceptable by all participants. Mediation is the most formal method that relies on the value of the participants' picking their own solution.

Arbitration can be a better choice if one of the participants is going to need more "coercion" to reach an enforceable solution or if the participants are not in a mental or emotional position to work cooperatively.

Often a neutral evaluation provided to the parties early in a dispute process can allow the parties to negotiate or mediate more smoothly. This of course requires that the neutral evaluator has the respect of all parties.

>What if one party feels that, even though there's a specific problem to be solved now, there is value in the results of this dispute impacting future similar disputes? Litigation may be the only way to accomplish this.

But litigation has many significant disadvantages. Except in very limited circumstances, the process and results of litigation are public. The process can be very expensive. A business involved in litigation can often have lots of resources re-focused from normal operations to supporting the litigation process such as discovery.

For examples of creative results that are possible through mediation (as opposed to litigation), take a look at our resource: "Mediation: The Creative Alternative".

But What About the Lawyers?

Lawyers have an active role in nearly all of the Dispute Resolution methods listed. In general, litigation does not lend itself to creative solutions, but given an appropriate forum (such as mediation and arbitration), lawyers have an incredible opportunity to assist the participants to:

• Protect the legal interests of their clients.
• Provide guidance on likely results if litigation is pursued.
• Increase the number of creative alternatives considered.

Expect that lawyers will be involved in your dispute resolution. For example, mediators will identify in advance for you where your legal rights should be considered and where obtaining legal counsel is strongly encouraged. So "ADR" doesn't eliminate the need for lawyers; it just changes the roles of the lawyers and increases the opportunities for lawyers to have a creative and positive impact on the long-term relationships of the participants

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