ALTERNATIVE DISPUTE RESOLUTION: ADR
Alternative Dispute Resolution, also known as “ADR” is the name usually applied to a method of resolving a dispute that does not involve a lawsuit (known as “litigation”). There are three (3) major methods of ADR used in Arizona by Prescott AZ lawyers: Arbitration, Conciliation, and Mediation.
Arbitration ADR
Arbitration has been defined as the process by which a disagreement between two or more parties may be resolved by neutral/impartial individuals, who are called arbiters (or arbitrators), in order to avoid litigation. Litigation is the process of pursuing a lawsuit in a court of law. Litigation is often time-consuming and expensive. Arbitration is generally designed to take less time than litigation and to cost less.
Arbitration may be binding or non-binding. If it is binding, the parties agree to live with the decision of the arbiter(s), regardless of what it may be. If the arbitration is non-binding, the parties are not required to abide the result and may seek another form of dispute resolution.
Rights in arbitration proceedings are often controlled by the agreement of the parties. Other times, there are court rules that control arbitration proceedings.
Arbitration is usually commenced by the act of a party making a formal written request for arbitration. Where recognized arbitration organizations are involved, such as the American Arbitration Association or the National Arbitration Forum, a fee must be paid at the time the request is made.
Sometimes in an arbitration proceeding, there is a right to discovery and sometimes there is no right to discovery. Discovery is the process by which a party to a dispute may obtain information about the dispute so that the information may be presented to the trier-of-fact at a hearing. Discovery usually includes depositions, interrogatories, and requests for production of documents.
Arbitration works best when all parties receive fundamental fairness. Information about the arbitration process should be readily available. The arbiters should be skilled, neutral and impartial. The arbitration should be administered by someone other than the parties. The cost of arbitration should be proportionate to the amount in controversy. The dispute should be resolved in a reasonable amount of time. Parties should be allowed the right of legal representation. The parties should have reasonable access to necessary information. Hearings should be convenient and fair. An arbitration decision (“award”) should be entered promptly after the final hearing concludes.
Arizona lawsuit rules require that parties consider ADR and then inform the Court whether some form of ADR, such as arbitration, may assist the resolution of the cause. Some lawsuits are sent to arbitration before the Court will schedule a jury trial. The arbitration process usually results in a large percentage of cases getting resolved, either through the arbitration process or by way of a settlement that is entered into after arbitration. Sometimes, once a party has had his/her day in court through an arbitration hearing, it becomes easier to finally resolve the litigation.
Arizona has several statutes that permit a court to enforce an arbitration award. Thus, a party that prevails at arbitration is usually issued a written award, which may be enforced through the courts if necessary. The Arizona statutes relating to arbitration may be found beginning at:
http://www.azleg.state.az.us/ars/12/01501.html
Conciliation
Conciliation is a form of ADR but differs from arbitration and mediation in many respects. “Conciliation” is generally defined to mean the attempted resolution of issues through informal negotiations involving the parties to the dispute and a neutral third party. The parties bring their dispute to the neutral third party, who helps lower tensions, improve communications, and explore possible solutions.
Conciliation is generally not described as a binding process, although the process may result in a formal agreement between the parties, which may then be enforced by the courts. Conciliation differs from arbitration in that an arbiter receives and considers evidence, and then decides the controversy. A conciliator listens to the parties and then tries to help them solve the problem.
The principal difference between arbitration and conciliation is that the conciliator may have an advisory role in the content of the dispute or the outcome of its resolution, but not a determinative or adjudicative role.
In Arizona, conciliation is usually reserved for domestic relations matters such as divorce and child custody. Arizona law also provides for conciliation in matters involving fair housing complaints to the Attorney General’s office.
Mediation
Mediation is another form of informal dispute resolution. It does not involve litigation. A neutral party, called a “mediator,” assists the disputing parties to negotiate a resolution. The process is entirely voluntary.
While the disputants may be adversarial, the mediator does not assume an adversarial role. Neither does the mediator assume the role of arbiter or decision-maker. Instead, the mediator facilities negotiation between the parties. The mediator engages in a neutral evaluation of each party’s position pointing out the strengths and weaknesses of the respective positions.
A mediator does not decide issues involved in the dispute. The mediation process attempts to help the parties to reach a mutually acceptable solution. Usually, the process is confidential although the parties are free to agree otherwise.
Mediation usually takes place in a non-adversarial setting and involves some face-to-face meetings between the parties. The mediation process often gives the parties a chance to have their claim evaluated by a neutral party whose goal is to facilitate a resolution of the dispute. Mediation is non-binding: if the parties cannot resolve their dispute in the mediation process they are free to seek other dispute-resolution procedures such as arbitration or litigation.
