What is Alternative Dispute Resolution?
Get insight into how ADR can help you resolve your legal disputeBy Canaan Suitt, J.D. | Last updated on July 10, 2023 Featuring practical insights from contributing attorneys Linda M. Mealey-Lohmann and Theresa (Traci) Capistrant
Use these links to jump to different sections:
- What Legal Disputes Can ADR Be Used For?
- How Common is ADR?
- What Are the Main Types of ADR?
- What Are the Benefits of Using ADR to Resolve Legal Disputes?
- Finding the Right Attorney for Your Needs
Going to court to resolve legal disputes is often time-consuming, expensive, and stressful for the parties involved. As a result, you may be wondering if there’s a way to resolve your legal dispute that doesn’t involve going to court.
Luckily, there is. “ADR is an alternative to having your case presented in court to a judge and getting a decision that one or both parties will be unhappy with,” says Linda Mealey-Lohmann, an alternative dispute resolution attorney in St. Paul, Minnesota.
There are several types of ADR. They follow different rules and procedures, but what they all have in common is letting opposing parties resolve disputes without litigation. As such, they are often less time-intensive and more cost-effective, allowing you to reach a settlement and move on with your life.
This article will briefly introduce ADR to help you assess if it’s a good option for your situation.
What Legal Disputes Can ADR Be Used For?
Different types of ADR can be used in a wide range of legal matters, including:
- Business disputes
- Contract disputes
- Employment and discrimination disputes
- Landlord-tenant disputes
- Homeowner association disputes
- Custody and visitation disputes
“ADR is really well-suited to the employment area, which is how I got started,” says Mealey-Lohmann. “I was an employment law attorney, and I saw how many years it takes to litigate an employment case and how expensive it is. It’s also a mental and emotional burden for the parties engaging in litigation—they aren’t familiar with the process the way the lawyers are.”
The turning point came when Mealey-Lohmann had a large employment law case that got resolved in one day through mediation. “I thought, ‘This is a much better way to resolve employment law cases than having to litigate for two, sometimes three years.’”
Traci Capistrant, a family law attorney at Capistrant Van Loh in Minneapolis, says that ADR is also well-suited to family law disputes such as divorce or custody agreements.
“I think ADR significantly decreases the stress of the unknowns and gives the parties far more control over the process,” she says.
“ADR can be far less confrontational, even when there have been instances of domestic violence, coercive control, abusive behavior, or a power imbalance between the parties. When a decent neutral third party is involved helping the parties through it, they can manage emotions far better and not let one individual be taken advantage of by the other in that neutral setting.”
How Common is ADR?
Mealey-Lohmann says that over the course of her legal career, ADR has become more widely recognized and accepted as a method of resolving disputes.
“In the early to mid-90s, if you even talked about ADR with the other side, they would automatically assume you must have a really weak case and want to settle. But that has certainly changed over the years.
“In many states, such as Minnesota, the courts now require parties to engage in ADR in each case, with very few exceptions. Now the question is: When should we do a mediation, not should we do a mediation?”
It’s the same with family law cases, says Capistrant. In a growing number of states, “courts require that the parties go through some form of mediation before going to court. There are very rare exceptions where mediation is not required—for example, if it’s purely child support or a contempt action. If there has been domestic abuse, you can request that the court not order you to participate. But otherwise, in a general case, the courts will require you to exercise some form of ADR before they will address the case for you.”
Mealy-Lohmann adds that even before ADR was required, “the numbers were pretty high—something like 95 percent of cases got settled in some fashion before going to trial.”
What Are the Main Types of ADR?
Every state has enacted laws that provide an alternative to litigation for conflict resolution. Some common ADR processes include:
Early Neutral Evaluation (ENE)
In a financial ENE, a neutral third party with expertise in a subject matter reviews and evaluates the opposing parties’ claims. In a social ENE, one involving custody and parenting time, there are two neutral third parties, a male and female, with expertise in family law. The neutral(s) get involved after a case is filed, but before the formal discovery process begins.
The financial neutral assesses the opposing parties’ strengths and weaknesses, gives an opinion on settlement value, and informs the parties on how they can expect a judge to rule in their case. The social neutrals also assess the parties’ statements using a “best interests” analysis and give an opinion on what the court will likely do with legal and physical custody and a parenting time schedule. They can also recommend communication options for the parents, suggest therapeutic interventions, and address holiday and vacation parenting time.
In light of these kinds of assessments, many parties are able to negotiate and resolve the dispute before going to a formal trial.
In mediation, a mediator works with the disputing parties to negotiate a mutually agreeable resolution.
“Mediation is a voluntary and confidential process. Both parties have to agree to do a mediation and who the mediator will be. Mediators don’t drive decision-making—the parties are the decisionmaker,” says Mealey-Lohmann. “If the mediation is unsuccessful, offers, assessments, and negotiations are inadmissible in court.”
“The mediator’s role is to look for where the sticking points are, look for where the parties can clarify what they’re saying to help the other side understand, help open the logjam when the parties get stuck in negotiations, and encourage them to keep looking for another solution.”
A Snapshot of the Mediation Process
Mediation sessions can be done in person or virtually. “I do all of my mediations in Zoom now and have since the pandemic started, and find it to be very successful,” says Mealey-Lohmann.
“We all get together in the same Zoom room, and I do my introductory remarks. In some cases, the parties will talk to each other directly in the same room, explaining why they brought the lawsuit or why they’re defending against the lawsuit.
“At some point, they share their ideas about how to resolve the dispute. Then there’s a series of guided negotiations with the mediator’s help until the parties reach a solution they can both live with to put the dispute behind them.
“In other mediations, the parties are uncomfortable being in the same virtual room with the other person, so we break into separate rooms right away. We do the negotiations with me, as a mediator, going back and forth between the rooms.”
How Long Does Mediation Take?
“In the commercial and employment area, mediations are usually one day. They generally last between three and six hours. Eight hours would be very long,” says Mealey-Lohmann.
When it comes to family law matters such as divorce or custody determinations, “It may be that a mediation session is three or four hours long,” says Traci Capistrant, a family law attorney in Minneapolis, Minnesota.
“You’re spending a chunk of cash right upfront to do the mediation, but if you can go to that three- or four-hour session and be done, it’s far less expensive than trial preparation and all the work that goes into that. Plus, you don’t have to deal with all the stress of preparing for a trial or letting a judge make the decisions for your life.”
“What happens in arbitration looks almost exactly like what happens in a courtroom, except it’s an arbitrator who’s a private person hired by the parties instead of a judge, it’s usually in a conference room or Zoom virtual room rather than a courtroom—and there’s no robe,” says Mealey-Lohmann.
Even though the arbitrator doesn’t get to wear a robe, “they have more power than a district court judge since an arbitration decision is not appealable except for extremely limited grounds, such as a conflict of interest.”
In other words, arbitrators issue binding decisions. “By contrast, a district court judge’s decision is always appealable to the court of appeals.”
What is the Arbitration Process?
“An arbitration generally goes like this: The arbitrator will meet with the attorneys prior to the arbitration hearing to discuss all the details for the hearing. This pre-arbitration scheduling conference and the arbitration hearing itself looks very much like what would happen in court. Prior to the start of the arbitration, both parties generally present a list of witnesses and documents that will be used at the hearing to each other and the arbitrator.
“As an arbitrator, I’ll swear in a witness, and they’ll give their testimony. There can be direct- and cross-examination and introduction of exhibits. And at the end of the day, after everyone has had their say, the arbitration is closed. The arbitrator goes off and writes a decision that presents their reasoning, and that ends the case. Typically, the parties want a written decision. You can do an oral decision, but that’s rare.”
Once the arbitration is finished, “the parties go off and try to enforce the decision—for example, if the arbitrator awarded the plaintiff $200,000, they would try to collect that.”
How Long Does an Arbitration Session Take?
“For arbitration, I’ve done some one-day arbitrations,” says Mealey-Lohmann. “I think the typical duration is about two to three days. And there are more complex cases that take longer.”
But even at several days, arbitration takes far less time than a typical court case. One thing that helps speed things up is that the parties don’t have to wait “however long to get on the judge’s calendar—as long as the arbitrator has availability, they can get it taken care of right away.”
What Are the Benefits of Using ADR to Resolve Legal Disputes?
There are at least three main benefits of ADR programs:
- You know what you’re getting. Even if you don’t love the outcome of a mediation or other alternative dispute resolution process, you at least know what you’re getting in resolving the dispute. In the traditional court system, you might go through a months-long case. In the end, the final decision is always left up to a judge, entirely out of your control. In mediation, you drive the decision-making along with the other party.
- Takes less time. Whether it’s mediation, arbitration, or some other ADR process, preparing for and completing ADR tends to take much less time than traditional litigation.
- Cost-effective. Paying for ADR services is often less expensive than attorney’s fees and other costs, such as court fees, that go into traditional litigation.
Finding the Right Attorney for Your Needs
To find an experienced ADR attorney in your area, visit the Super Lawyers directory and use the search box to find a lawyer based on your legal issue and location.
Here are some FAQs you might want to consider when meeting with an attorney:
What is your experience as an ADR practitioner?
Qualifications and experience matter. Look for an attorney with prior experience as a mediator or arbitrator. Getting an attorney with experience in your type of legal dispute is also preferable. For example, if you have an employment law issue, look for an ADR attorney specializing in employment law rather than divorce or real estate ADR. Of course, some ADR attorneys may have multiple areas of expertise.
What are your attorney’s fees or ADR service costs?
Attorneys charge based on several factors, including their practice area, years of experience, location, size of their law firm, and case complexity. They also have different billing methods, from flat fees to hourly rates. There’s no one-size-fits-all when it comes to attorney’s fees. Have this conversation upfront as you search for attorneys.
Is ADR suitable for my legal issue?
ADR is a great way to solve many legal disputes. In some situations, such as arbitration clauses in employment contracts, it’s even required. A growing number of states also require the parties to engage in some form of ADR before a court gets involved in resolving a dispute. As with any legal issue, it’s wise to consult with an attorney about your situation and get their expert insight on resolving your case when considering ADR.
To help you get started, consider looking for an alternative dispute resolution lawyer.
Additional Alternative Dispute Resolution articles
- How Long Does Mediation Take?
- What to Look For in a Good Mediator
- How to Prepare for a Successful Mediation
- The Reasons Why Mediation is Preferred for Business Disputes
- What Is the Difference Between Arbitration and Mediation?
- When Mediation May Not Work for Your Legal Dispute
- A Walk-Through of the Mediation Process
- What is Mediation?
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