ADR:
ALTERNATIVE DISPUTE RESOLUTION
Read the
WARNING! first.
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: Arbitration, Conciliation and Mediation.
Arbitration
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.htm
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 through
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 about 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.
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Arizona ADR matter, contact us. |
