by Edward J. Costello, Jr. [1]
Arbitration - A neutral is selected by the parties (if they agree), or by a court or ADR provider (such as the American Arbitration Association) if the parties are unable to agree on an arbitrator) to hear and decide a dispute. Disputes may be submitted to arbitration whether or not there is an “arbitration clause” or a pending court case. Pre-hearing “discovery” is normally limited and the rules of evidence somewhat relaxed. The arbitrator conducts a full hearing, after which he/she enters an “award” deciding the dispute. This award is binding, unless the parties agree otherwise, and may easily be turned into a court judgment, if necessary. As with all forms of voluntary alternative dispute resolution (ADR), the parties can vary any or all of these characteristics--either by pre-dispute contract or by agreement after a dispute has arisen.
Mediation - A neutral is selected by the parties to assist them in arriving at an acceptable resolution of a dispute. The mediator meets with all the parties (and their counsel)together and separately, and uses his/her experience and expertise bring the parties together. Things said and done during mediations are made confidential by statute in most states. Agreements reached at mediations are reduced to writing and signed by all parties. Since the parties themselves have been involved in crafting the agreement, failure to perform is extremely rare. Unlike “settlement conferences,” mediation devotes whatever time is necessary to permit the parties to understand the issues and fully explore resolution options. For this reason alone, mediation is popular in complex, multi-party disputes. As with arbitration, there need not be a “mediation clause” or a court case pending.
Temporary Judge - Parties to cases pending in the court system are given the ability to select any lawyer as a temporary judge (judge pro tem.) Frequently called "rent-a-judges", these temporary judges act as if they were a trial court judge for the purposes of a particular case. The normal rules of procedure and evidence apply, unless the parties agree otherwise, and the decision of the temporary judge is final and appealable.
Voluntary Reference - Usually, these references will be employed in cases already pending in a trial Court. These references may be made "upon the agreement of all parties," or on the motion of a party "to a written contract or lease which provides that any controversy arising therefrom shall be heard by a reference if the court finds a reference agreement exists..." The scope of the reference ranges from "all of the issues in an action or proceeding" (a "general reference") to "a fact necessary to enable the court to determine an action or proceeding." While general references are technically possible, parties seeking one neutral to decide their entire case normally choose to appoint a temporary judge (see above). "Special" references allow the litigants to have an advance decision on some issues in the case, and have the trial judge take a critical look at that decision before adopting it. The referee's appointment concludes with his/her filing the Report with the court. Examples of "issues" which are frequently referred include: attorneys' fees, complicated damage claims, conflicting expert testimony, etc.
Involuntary Reference - When the parties to a State court lawsuit do not agree, the court may nonetheless direct a reference in a broad group of circumstances. Statewide, it appears that the most frequent use of this mechanism is to resolve discovery disputes. With calendars getting more crowded and funding for public courts on the decrease, it is anticipated that directed references will become more frequent. While the judge decides who the referee will be, most judges give serious consideration to “referees” recommended by the litigants.
Special Master - Rule 53, Federal Rules of Civil Procedure
This procedure is limited to cases pending in the federal courts. Despite the restrictions placed on references by the Rule, if the parties and the judge agree, there is little practical limit on what a special master may be asked to do. Like its state court analogue, the special reference, the work of the special master culminates in the presentation of a report to the court. The compensation for the master, and how it is allocated among the parties, are decided by the judge.
Early Neutral Evaluation - This is a procedure whereby a neutral is appointed to hear and evaluate a case at a relatively early stage of the litigation. While early neutral evaluation is mandated in some courts, its popularity as a voluntary alternative dispute resolution (ADR) mechanism is growing. As with other forms of ADR, the varieties of early neutral evaluation are limited only by the imagination of the parties and their counsel. In some instances, the neutral who performed the early neutral evaluation is called upon to mediate the case at a later stage.
Hybrids - Because most ADR mechanisms are voluntary, there is no limit to the possible combinations of--or modifications to--the traditional mechanisms. An example is MED-ARB, where a neutral is chosen to mediate the dispute and to act as an arbitrator for those issues which cannot be resolved by mediation. Another is ARB-MED, where a neutral is chosen who hears the parties’ evidence, makes an binding award and seals it. The neutral then tries to mediate the dispute with the parties. If he/she fails, then the award is opened and entered.
ADR System Design and Implementation - Many organizations want to create ADR programs which are appropriate for the types--and frequencies--of the disputes they have. Few of these organizations have the in-house expertise necessary to perform the assessment, analysis and recommendations required to decide whether ADR is right for them, and, if so, what forms of ADR. Similarly, when an ADR program has been selected, implementation of that program (documentation, training, getting the right information is out) is usually outside the experience of the selectors. Consultation in both areas is provided to law firms and their clients.
Copyright 2007 E.J. Costello. All Rights Reserved
WHY TRY ALTERNATIVE DISPUTE RESOLUTION?
SAVE MONEY - Almost any form of ADR will resolve your dispute less expensively than a lawsuit.
SAVE TIME - Almost any form of ADR will resolve your dispute (1) months or years ahead of a lawsuit and (2) on a schedule that you can agree on and count on.
SAVE RELATIONSHIPS - All forms of ADR are less “toxic” than lawsuits, permitting the parties to conclude their dispute without poisoning all future relations between them.
MAINTAIN PRIVACY - Most forms of ADR, since they are outside the court system, are private. You are thus not subject to public or media scrutiny.
CHOOSE YOUR OWN “JUDGE” - you can agree on the person with the right personality, experience and expertise.
MAINTAIN CONTROL - you can decide when, where and how the ADR procedure will be conducted; you retain your right to preliminary relief.
FLEXIBILITY - you can design a process that is right for your particular dispute, and not be stuck with the off-the-shelf product available at the courthouse.
|
[1] Mr. Costello has been full-time arbitrator, mediator and private judge since 1989. He is author of Controlling Conflict: Alternative Dispute Resolution for Business, (CCH, Inc. Chicago 1996) and numerous articles. He has served as a Judge pro tem. of the Los Angeles Superior and Municpal courts for more than twenty years, and teaches Arbitration/Mediation at Loyola Law School. He is on the American Arbitration Association's Large Complex Case Panel, as well as its specialty panels for Construction and Employment disputes.
