ADR Overview & Styles

ADR Styles

What is ADR? ^

Alternative Dispute Resolution (ADR) is an alternative to litigation, the legal system’s traditional, adversarial method of dispute resolution.  ADR includes an array of styles and methods to achieve legal resolution, entirely or largely outside of the courtroom setting and outside the litigation processes or in combination with the traditional methods.  ADR is also employed to narrow the areas of conflict between the parties thus, minimizing the exposure of litigation.

The primary benefits are cost and time savings of litigation, pretrial preparations, Discovery, motions followed by a costly trial, which ultimately may or may fail to provide one or both parties with a satisfactory outcome.  Information at trial becomes public information.  ADR is a method, that when done effectively, allows the parties to reach an optimal resolution with their dignity intact.

The method of ADR employed primarily depends on the particulars of each case and are selected by the parties to most closely align with a jointly agreed upon process to resolve their specific dispute.  The process is defined and can be tailored to meet the case particulars and the parties’ preferences.

ADR utilizes the skill of a neutral.  A “neutral” is an individual who presides, moderates and facilitates an ADR process.  A “qualified neutral” is an individual or organization included on the State Court Administrator’s Roster, generally organized by county, who has completed the required training and continuing education.

Participation in all ADR services can be Pro Se (unrepresented) or with respective counsel.  Parties often find the confidentiality afforded to the parties an attractive attribute of ADR, whether in sensitive family court matters or in resolving business and civil matters.

Laws governing ADR practices vary state-to-state.  Rule 114 of the Minnesota General Rules of Practice governs ADR in Minnesota.  Rule 114.08 provides strong assurances of confidentiality of the entire ADR effort, including testimony, notes and evidence, except with the express permission of all parties, including the neutral, themselves.

Such protections provide a construct that encourages openness and honesty in negotiations, imaginative solutions to be ventured and constructive dialogue providing a foundation for agreements that would not be entertained or encouraged in a traditional courtroom setting.

ADR efforts are generally accomplished jointly, incorporating caucuses (shuttle diplomacy) – providing privacy to the parties, when indicated.  Accommodations are made when there are “No Contact” or other restraining orders involved.

The exact process is as unique as the case facts and the parties, themselves.  This blends nicely with a tailored approach applied in each case.

The mediator/moderator does not provide legal advice or represent either or both parties.

There is no judicial system or remedy that place the parties more in control of the process or achieves more self-determined resolutions and outcomes, than ADR.

Facilitative ^

A facilitative method, sometimes referred to as transformational, includes the classical and most frequent method; mediation.  The mediator works, collaboratively with the parties to reach an acceptable resolution to issues and concerns while providing unique focus for personal/corporate interests and needs.  The issues are explored respectfully, concerns are validated and the mediator facilitates, through process structure, in analyzing and exploring options and opportunities while maintaining a focused, respectful environment and avoiding non-productive divergences and digressions.  The mediator lacks authority to impose terms or resolutions, but is trained in helping the participants to jointly make decisions towards resolving their own dispute.

The mutually negotiated agreement is then transformed into a legally binding document.

Adjudicative ^

The adjudicative approach includes Arbitration.   The parties present their case along with Exhibits and the neutral will make inquiries, ask clarifying questions or request the production of specific information/documentation, when necessary, and ultimately, as agreed by the parties beforehand, will make a legally binding decision.  A traditional courtroom and judge is an example of an adjudicative process.

Evaluative ^

This approach to dispute resolution is exploratory and reflects the Moderated Settlement Conferences/Non-Binding Advisory Opinions and Early Neutral Evaluation (ENE) programs.  Working with the parties, the facilitator identifies weaknesses and strengths of each party’s legal arguments and informally offers predictive and likely trial outcomes and other possible consequences of continued litigation.  The neutral often has varied levels of substantive expertise in the type of case and can speak to related legal, factual or financial case issues.  The process then takes the information gathered and utilizes it in an effort to mediate the case.

This approach has a greater slant towards legal perspectives and legal concepts.  Parties are guided, in a structured manner, to conduct cost benefit analyses as they move through the case particulars.

Like the facilitative method, it ultimately guides the parties to a mutually agreed upon resolution through the use of varied approaches.

Hybrid ^

As the term implies, the Hybrid method is a fusion of styles, agreed to beforehand.  Med/Arb, a combination of Mediation and Arbitration, and Moderated Settlement Conference/Non-Binding Advisory Opinions (mediated, evaluative and non-adjudicative) are both such styles.  The advantage of this type of dispute resolution lies in the motivation of the parties to reach a mediated, self-determined solution, knowing that if the mediation effort fails, the process will then morph into an Arbitration process, in which a decision will be rendered and is legally binding.

Online Dispute Resolution (ODR) ^

As technology has advanced and the geography and breadth of daily lives and work schedules have also expanded, the two can converge for optimal ease and effective resolution.

Through Skype and other video-conferencing tools, the electronic exchange of documents, conflicts can be resolved effectively, even when proximity cannot be achieved by both parties.

Any of the ADR methods discussed previously can be incorporated in an ODR format.

ADR can be effectively applied to virtually any legal matter or disagreement.  A topical list includes matters involving:

  • Business
  • Child custody
  • Commercial
  • Congregational
  • Construction
  • Contracts
  • Consumer Protection
  • Defamation
  • Discrimination (disabilities, race, gender, age)
  • Divorce and post-decree
  • Elder Care
  • Employment
  • Family
  • Family Business
  • Insurance
  • Intellectual Property
  • Parenting and co-parenting issues
  • Partnership Issues
  • Personal injury
  • Property
  • Real estate
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