ALTERNATIVE DISPUTE RESOLUTION (ADR)
Alternative Dispute Resolution (ADR) refers to several different methods that have been created in order to permit the parties to a dispute to resolve their differences without the intervention of a judge. The word “Alternative” in ADR refers to the fact that these various methods are an “alternative” to going to court.
The two most frequently used of these “alternative” methods are Arbitration and Mediation. The others include negotiation and collaborative law. Mr. Bosses specializes in Mediation and Arbitration. He has found that many people, including lawyers, do not fully grasp the differences between these two methods of ADR.
Arbitration is process whereby the dispute is decided by the arbitrator(s) (similar to submitting the dispute for a judge to decide), however, unlike the decision of a judge, except in very rare cases, an arbitration decision cannot be appealed. In that sense it is considered “Final”. Arbitration differs from going to court in many other ways. For example, in Arbitration, unlike in court, the parties decide, either before the dispute arises or after it has come up, on the ground rules. For example, they decide whether there will be one arbitrator or three (or technically as many as the parties decide, however virtually all arbitrations are before one or three arbitrators). The parties also decide on how much and what kinds of discovery will be permitted and what rules of evidence will apply.
Mediation, on the other hand is very different. In mediation, no one other than the parties themselves decides on the outcome. In other words, the parties, not the mediator, decide whether to settle their dispute and on what terms. The mediator is primarily a facilitator. (S)he helps the parties better understand the dispute, the other side’s position, their own position, what the underlying problem are, what each side really needs in order to settle. But first and foremost, the outcome remains at all times in the hands of the parties. Very often, during mediation the parties have their last chance to keep control of the outcome. If they cannot come to some agreement, the outcome will like be made for them by one or more arbitrators or a judge.