Resolving Conflicts Out of the Courtroom

Use these links to jump to different sections:

• What is Alternative Dispute Resolution (ADR)?
• Why is ADR Preferred to Litigation?
• How Do You Find the Right Mediator?
• What Are the Benefits of Arbitration?
• Find an Experienced ADR Lawyer

The legal system, author Henry Miller said, “is often a mystery, and we, its priests, preside over rituals baffling to everyday citizens.”

So when an opportunity comes along to reduce that mystery and bafflement, many lawyers and consumers are eager to participate. Alternative dispute resolution is such an opportunity, letting parties resolve disputes outside the formal court process.

What is Alternative Dispute Resolution (ADR)?

ADR is a catchall term that describes conflict resolution processes that allow parties to find solutions and avoid the cost and time commitment of a trial. Forms of ADR include mediation, collaborative law, and arbitration:

• In a mediation session, a neutral third party helps two sides try to resolve their conflict by helping the parties compromise.
• Collaborative law works in a similar fashion to mediation and may be particularly helpful in seeking a peaceful solution in divorce or child custody cases.
• In arbitration, an arbitrator hears both sides of an argument and then makes a binding decision on the outcome as an impartial person.

In mediation and collaborative law, the disputing parties are the decision-makers. Arbitration is more like court, where the arbitrator acts like a judge in making decisions on behalf of the parties.

Attorneys caution that people should make sure what rights they’re signing away, such as accepting an arbitrator chosen by one’s employer in an arbitration clause, before entering into an arbitration agreement.

Why is ADR Preferred to Litigation?

As courts have become more clogged and costly over the last decade, ADR has soared in popularity for matters ranging from family law to consumer law to corporate law.

ADR may also maintain privacy in a legal dispute and keep stress levels lower. Increasingly, law schools are training students not just in the intricacies of law but also in the nuances of navigating the legal system outside of court proceedings.

The process is only likely to grow in popularity, says Irene C. Warshauer, a New York-based arbitrator and mediator who has mediated more than 100 matters.

How Do You Find the Right Mediator?

Clients should look for someone “known to them or an acquaintance as reliable and trustworthy; generally, someone with knowledge of the subject matter, if it is complicated, helps,” says Warshauer. “Someone they can work with; someone who has enough available time.”

“A good mediator is someone who can go back and forth between the parties until they can agree,” says Ruth D. Raisfeld, a mediator and arbitrator in White Plains. “Think of diplomats, people who can be helpful when two people say, ‘Can you help us negotiate this thing?’ A successful mediation culminates in an agreement, not a decision. A win is when both parties walk out with an agreement and are willing to leave the dispute behind them.”

“Both parties realize they’re going to have to give something up,” Raisfeld explains. “They may get some things they want; they may not. But the process helps the parties focus on the issues and get to a resolution. You want people in a problem-solving mode who can walk in [the client’s] shoes. A good mediator will have emotional intelligence.”

What Are the Benefits of Arbitration?

“The arbitration provision, which usually includes a class action waiver, is often inserted amidst boilerplate language in the proverbial fine print,” says consumer-law attorney Michele F. Raphael. “It is most often non-negotiable and take it or leave it, so that the consumer cannot, for example, get the credit card or open the account unless he acquiesces to said provision.”

The rules of evidence are more relaxed in arbitration than they would be in a trial setting.

“Arbitration is a creature of choice and has proven to be an effective dispute-resolution process since ancient Greece,” says Edna Sussman, with SussmanADR LLC in Scarsdale. “Arbitration is an excellent tool for the resolution of many kinds of disputes because it is a process that the parties can tailor to their needs.”

Jill Alward, a consumer-law attorney representing businesses at Blank Rome, says that overall, she thinks arbitration works well for everyone. 

Find an Experienced ADR Lawyer

If you have a legal dispute and would prefer to resolve it outside the court system, consider contacting an experienced New York ADR attorney for legal advice. ADR can be used for many types of disputes, from divorce and child custody proceedings to business and employment law issues.

For more information on the types of ADR, see our overview of alternative dispute resolution.