CADRE Resources

ADR Options

A Spectrum of Processes

There is a spectrum of dispute resolution processes, ranging from informal discussion to formal adjudication. The concept behind the development of alternative dispute resolution, or "ADR," is that the traditional adjudicatory model of dispute resolution is not always the best approach. Rather, the concept has developed that "the forum should fit the fuss," and not vice versa.

With time, ADR has come to have a new meaning, "appropriate dispute resolution." In light of the rapid growth of collaborative negotiation, mediation and other settlement processes, there is, in fact, nothing alternative at all about ADR today. We are finding collaborative negotiation and mediation processes adopted with increasing frequency in legal, governmental, business and family matters.

There are no limits to the types of dispute resolution processes that can be utilized. When it comes to settlement processing, "anything goes," both in terms of the process of reaching resolution and content of any resolution. The only key is that the parties (and assisting professionals) understand and agree to the same process. This concept of "informed consent to the process" permeates the ADR movement. Also common to the ADR processes is the concept of creating a settlement event, some shared experience that increases the likelihood of resolution.

All ADR processes have the following desirable impacts:

• they motivate the parties and any representatives to fasten their attention to the case and prepare for resolution;
  
  
• the parties have "their day in court," a "hearing" in which they have the opportunity to present their perspectives on the situation and their sense of a "fair" resolution;
  
  
• often for the first time, the parties have the opportunity to experience a capable presentation of the other side's case; and
  
  
• the parties have a window of opportunity to identify common interests and points of agreement, and the opportunity to fashion mutually acceptable settlement options to disputed issues.

The ADR processes differ in their formality and placement of decision-making power. If the process is mediation, the decision-making power will reside at all times with the parties. In adjudication and arbitration, the decision-making power lies with the third-party neutral.

The ADR Processes

Adjudicatory Processes

Adjudication - the competitive presentation of evidence to a judge that results in an order, judgment or decree (win/lose decision). The decision-maker is selected by the community and rules according to community legal standards. There are formal rules of procedure and evidence. The judge's decision is appealable.

Arbitration - the competitive presentation of evidence to a decision-maker selected by the parties for an award (win/lose decision). The arbitrator is typically selected based upon the arbitrator's substantive expertise. The arbitration is held according to procedural and evidentiary rules the parties agree upon. Arbitration decisions typically cannot be appealed, except in situations of undue influence, bias, duress, etc.

Court Annexed Arbitration - Court-annexed arbitration is not true arbitration as parties have right to trial de novo (a trial as if no arbitration took place). Court-annexed arbitration is really a negotiation process, intended to promote settlement for designated classes of cases, such as property claims under $25,000. There are often financial sanctions for proceeding to trial, if a party does not improve their position relative to the non-binding arbitration award.

Private Tribunals (Rent a Judge) - By statute in most states, parties can appoint any person as their judge, with full judicial powers. The private tribunal's decision is entitled