One cannot be involved in any kind of court proceeding these days without hearing about “ADR,” or Alternative Dispute Resolution. Whether it is a suit for money arising out of an automobile accident, or from a medical problem, or a complicated construction dispute, a claim for securities fraud, or a family law case involving child care, support of a spouse, or distribution of property, sooner or later, someone, whether another party to the dispute, or a judge, will ask, “Have you considered ADR?” Many judges, especially in family litigation, will insist that the parties attempt to resolve their differences by ADR.
To assist our clients, what follows is a primer on ADR. Before any decision is made to utilize ADR, there should be a thoughtful examination of the appropriateness and opportunities possible in the client’s unique circumstances.
The obvious first matter to address is to what is ADR an “alternative?” In the world of litigation, courts, plaintiffs and defendants, ADR consists of finding a way to avoid or end a court action without having a trial and a decision by a judge or jury. An alternative can be used before a lawsuit has even begun; or it can be used during the course of the lawsuit. In fact, the number of legal cases filed vastly exceeds those actually going to trial. If this were not true, our courts would be clogged worse than they are. That is why judges encourage ADR. Litigation is subject to many rules, limitations, delays and costs. That is why clients may best be served by an alternative.
So far, we have been referring to ADR as if it were a single procedure, simply a way to avoid a trial and decision by a judge. In fact, there are several types of ADR. Each has its own purpose, place and utility. To consider what might be appropriate in a client’s particular circumstances, we must consider the different alternatives available.
Many involved in the judicial system as a way of resolving disputes may not think of negotiated settlements as ADR. Nevertheless, anyone contemplating a court action should understand that as many as eight or nine out of ten lawsuits do not go to a contested trial, and most of those which are not tried are settled by negotiations between the contending parties. In family law cases, the husband and wife, domestic partners, or mother and father, are encouraged to work out the issues being generated by disputes within the family orbit: how will children be supported and raised; how will the parties’ assets and debts be allocated, how will the litigation be paid for; and what can one person do to curtail another’s harassment. These and many other questions have to be resolved. Much has been written about the costs of resolving such disputes and issues using a court. Solving some problems may not be worth the cost. Imagine Judge Judy’s televised solutions on who gets the engagement ring after a broken engagement coming, not after five minutes of pleading before her Court, but after spending thousands of dollars. At the other end of the spectrum, some problems may be too complex for the limited range of things a court can do. Imagine a court trying to manage an antique store for two warring spouses, each accusing the other of stealing and mismanaging the business they own together.
An alternative in these situations is for the parties to employ advocates to assist them in gathering the information needed to proceed, developing options, and, in the words of the Harvard Negotiation Project, “Getting to Yes.” This requires skill, expertise and an understanding of the negotiation process, but the result can be uniquely tailored to the client’s wishes and needs, avoid expensive litigation, and be done on the timetable of the parties, not the court.
Notwithstanding the obvious benefits, negotiated settlements are not always possible, and the process can be combatative, protracted, and even costly, depending on the participants.
Mediation is a specialized form of negotiation and settlement utilizing a qualified mediator to guide the parties to a dispute through a process which can lead to agreed solutions. Mediation can take place with attorneys present, or with attorneys only available to inform and assist their clients, who meet alone and together with the mediator and work through the process. If successful, the parties reach agreements on disputed matters which can be put into formal, signed agreements, and even court orders. The individuals retain a great deal of control over the outcome of their case. When the parties are committed to the process, willing (and able) to express their own needs and wishes, and willing (and able) to listen and compromise, mediation can reduce greatly the possible costs of a divorce or other legal proceeding, and can achieve settlements without the residual rancor and outrage arising from litigation.
Mediation is not for everyone. The decision to mediate should not be based on cost alone. The client must consider the personality and manner of operating of his or her spouse; the availability of essential financial information; and his or her own willingness to do what is required in the process. At the outset, an experienced attorney can help the client in assessing whether to mediate, and even in selecting a mediator. Then, if mediation is pursued, the attorney can coach, review the data being considered, serve as a sounding board, and help generate ideas and solutions. The client should never feel alone in this process. An experienced mediator does not “take sides,” but insures both parties are heard and their inputs are respected.
Attorneys at Kuder, Smollar, Friedman & Mihalik, PC have the benefit of experience both as mediators and as attorneys assisting people in mediation.
A recent, and expanding, approach to resolving legal cases is collaborative law, most frequently used in family law cases. Collaborative law starts with a different premise than mediating or negotiating a lawsuit. The forms of ADR we have considered above still are based on the litigation model of contending sides, and results achieved are compromises, often, although not necessarily, related to how a court, a judge or a jury might resolve the issues. In collaborative law, the participants commit at the very beginning to settle their issues without going to court. They retain their attorneys for that purpose and agree that, if the process fails, these attorneys shall not represent them in any court process. This “disqualification provision” signals the parties’ profound commitment to negotiation and resolution through this settlement process and binds the attorneys to the same commitment. In other words, there is an unspoken incentive to the lawyers to use their talents and most creative efforts to solve problems without invoking an outside decision-maker.
This process focuses on interest-based, rather than positional, negotiation. The skills and talents of mental health professionals and financial experts are often utilized in working with the lawyers as a team to support the parties in resolving their issues so that they obtain their goals and aspirations regarding how they want to co-parent their children, support themselves and their children and conclude their financial arrangements
As with other forms of ADR, collaborative law is not for every client or case. The pros and cons, and suitability, need to be considered thoughtfully. The best persons to help in deciding on a form of ADR are attorneys familiar with, and practiced in, each method.
Up to this point, we have been considering alternatives to resolving disputes by a trial. There is one last form of ADR which may be appropriate and best meet the needs of the client, but which still involves proceedings similar to a court trial, albeit with important differences.
Arbitration involves employing a private judge to make decisions about matters which the parties cannot resolve. Who does the deciding? Usually a lawyer, but nearly always someone with knowledge or experience relevant to the issues. There now are firms who will help find an arbitrator who meets the requirements of the case. In family law cases, an experienced family lawyer familiar with the laws of the state (or District of Columbia) is a customary choice. The arbitrator can decide a single issue; e.g., the amount of alimony, or who receives the children’s portraits in a division of personal property. Or, arbitration can be used to decide entire cases with many issues, both on procedure and the ultimate issues being litigated. Arbitrators have been deciding securities claims, labor disputes, and salary issues for professional athletes for decades.
Some question why they should pay someone to decide things when courts and judges are available at little cost? Anyone who has had a matter litigated in court can appreciate that although the court does not charge, the way events transpire can result in dramatically increased costs. The courts control their calendars, they require people to show up for motions, scheduling, or pre-trial conferences, settlement conferences and status reviews. Only certain days are available for certain proceedings. Then, another case may take longer than expected, forcing postponement of the client’s case to another time; or the judge may become ill, have a matter arise which take precedence, etc. With an arbitrator, control of scheduling is greatly simplified. Many things can be handled by telephone or email. Hearings can be scheduled based on out-of-town witnesses’ availability, something that almost never is possible in regular litigation. Evidence need not meet the formal tests of a courtroom, saving time and expense. As a result, notwithstanding the fee being paid to the arbitrator, costs can be greatly reduced by the wise use of a knowledgeable arbitrator. Almost certainly, the time for getting to a decision is much shorter with arbitration. Finally, the arbitrator may be much more informed than a judge about the particular subject matter of the dispute.
It would seem all cases which cannot otherwise be resolved ought to take advantage of an arbitrator, but that is not the case. In our experience, some cases are better suited to a family court judge for one or more of many reasons. Arbitration has evolved to provide a useful, and often desirable, alternative to a court proceeding, but any decision to use arbitration has to take into account the specific circumstances of the client and the case.
The foregoing is designed to aid our clients to fully participate with us in management of the legal case(s) being entrusted to us. Even if the reader does not employ the attorneys at Kuder, Smollar, Friedman & Mihalik, PC, she or he should know of and consider the forms of Alternative Dispute Resolution discussed in proceeding with any legal dispute or problem.