Adr Primer

Alternative Dispute Resolution (ADR) is a potentially quick and costeffective way to resolve disputes that would be prolonged and costly if litigated in court. The key is early assessment and understanding ADR possibilities.

Effective use of ADR can significantly reduce litigationrelated expenses through:

• Reduced outside counsel fees.

• Creative fee arrangements with outside counsel.

• Lower administrative costs associated with investigation and factfinding, oral discovery, and trial testimony.

• Greater control over scheduling caserelated activities.

• Precise identification of issues and discovery limited to those issues.

• Evidentiary shortcuts, including stipulations to testimony and dispensing with technical foundational requirements.

Quasijudicial methods of ADR include:

• Binding arbitration, in which the arbitrator issues a final decision which is binding on the parties and (generally) not reviewable by the courts.

• Nonbinding arbitration, in which the parties can chose whether to accept the arbitrator's award or proceed with litigation.

• “High/low” arbitration, in which the parties agree to a range of the outcome.

• Final offer arbitration, in which the parties decide the extent of discovery and the process of the arbitration hearing, and then submit their “final offers,” after which the arbitrator renders a binding award within the range of the parties’ offers.

• Baseball arbitration, which is similar to final offer arbitration, but in which the arbitrator must issue a binding award of either the plaintiff’s or the defendant’s offer.

• Med/Arb, where the parties agree that if mediation results in an impasse, they will submit the case to arbitration.

• Mandatory courtordered arbitration, where parties to submit to a nonbinding arbitration, but may be subject to penalties for nonacceptance of an award, such as a required payment for “rejection” of the award or the award of attorneys’ fees or other monetary sanction in the event that a jury verdict is less favorable than the award.

Mediation gives the parties the greatest possible input into the ultimate decision. Mediation methods can include:

• Facilitative mediation, in which the mediator does not offer his or her evaluation of the positions of the parties or value of the case.

• Evaluative mediation, in which the mediator offers his or her evaluation of the outcome of claims or defenses, the credibility of witnesses, and the strength of evidence, and an opinion on the value of the case and settlement range.

• Neutral evaluation, in which the mediator considers the facts and positions of the parties, then submits an evaluation orally or in writing.

• Bifurcated mediation, in which the parties agree to have two separate mediators assist with the liability and damages aspects of the case.

• Settlement conference, in which a retired judge presides over a typical “pretrial conference” to listen to a presentation of the facts and positions and render a recommendation about settlement value.

• Minitrial, in which the parties try agreedupon issues to a panel of decisionmakers from each side. Following the “trial,” the decisionmakers then engage in direct negotiations to resolve the case.

• Courtordered mediation, in which either an independent private mediator, selected and funded by the parties, or a courtappointed mediator or magistrate undertake the mediation with the costs borne by the court system.