Alternative dispute resolution ("ADR") is used to describe multiple methods of resolving legal disputes without actually going to court. These methods include arbitration, mediation, and negotiation, among others — all are designed to be more cost effective and take a shorter period of time than court, and leave the dispute out of public record.
Historically, ADR has met resistance by both parties and their advocates; however, with the rising cost of litigation, and the severe backlog in civil courtrooms, ADR has gained widespread acceptance from both the general public and the legal profession. In fact, many courts now require parties to resort to some sort of ADR before allowing their case to be tried in a courtroom, and forty-nine states have adopted the Uniform Arbitration Act (1955) was adopted by Congress in 2000 with a mandate that all states must adopt their own version of the act.
There are many benefits to using ADR instead of the court system: disputes can be settled more quickly than if the parties waited for a court date and to go through trial; parties can save money by avoiding litigation expenses; parties often feel that they have more control over the process and the outcome than they do at trial; and because it is a less adversarial process, it can preserve the relationship between the parties. There are also benefits for the attorneys involved. Clients can come away feeling like there has been a win-win resolution where the attorney was the problem solver, which increases client satisfaction and creates repeat business and referrals.
Arbitration and mediation are the two most common types of ADR; however, negotiation is almost always attempted first to resolve any dispute and is seen as the preeminent method of dispute resolution. Because negotiation is an informal method of dispute resolution (where relying on the court is a formal method), parties have the ability to control the process and the solution, rather than leaving it up to the court.
Mediation is also an informal method of dispute resolution. Mediators, individuals trained in negotiations, bring the parties together and attempt to work out a solution or agreement that both parties can accept or reject. Mediation can used in almost any kind of legal dispute.
The third method of ADR is arbitration. Arbitration is very similar to a courtroom trial: evidence is presented, witnesses are called and questioned, and arguments are made. However, many of these aspects of arbitration are streamlined and made simpler in order to speed up the process. Generally, arbitration proceedings are not part of the public record, making this process ideal for a party that wishes to keep the details confidential. Following the hearings, the arbitrator or panel of arbitrators will deliver a ruling to the parties within a specified time period. Depending on the type of arbitration, the ruling may be final, or there may be an option to appeal.
The difference between arbitrators and judges is also an important consideration. When parties file a case in court, they do not have the ability to choose the judge that will preside over their matter. However, in arbitration, parties often have the ability to choose who their arbitrator will be. For example, the parties may select from a pool of arbitrators, or eliminate choices from the provided options. Additionally, arbitrators may be required to be experts in the field, whereas judges may or may not have any knowledge of the underlying matters in dispute.
ADR is a growing field with opportunities in most government agencies, the private sector, public interest organizations, as well as internationally at entities such as the World Bank, Permanent Court of Arbitration, and many others.
Breadth and Depth
In speaking to attorneys who have primarily ADR practices, they all stress that, while there is no defined set of skills which make them successful, generally all ADR practitioners possesses a few of the same skills.
Although ADR is an alternative to formal litigation, attorneys who work in the field must be well versed in litigation because their clients often want to know about the consequences if ADR does not work out. Additionally, attorneys who work as arbitrators or mediators must be capable of remaining neutral. Many practitioners in this field explain that, in order to be effective, it is crucial to maintain a judicial temperament at all times. Finally, mediators and arbitrators must be willing to work with many different types of people.
Skills often found in ADR attorneys:
Participating in any of the below-listed activities will not only offer you valuable insight into alternative dispute resolution practice, but will put you at a competitive advantage in your post-graduate job search.
Practitioners of ADR work in a variety of practice settings:
An ADR practitioner’s client base depends on the type of ADR or area of law that he or she specializes in. Clients can include businesses, both large and small, government agencies, for profit and not for profit organizations, classes of people (as in a class action), and individuals.