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Court ADR Pocket Guide

What Is ADR?

Alternative dispute resolution, or ADR, is an umbrella term used to describe a variety of methods for resolving disputes outside of traditional methods such as litigation. Sometimes the "A" in ADR is defined as "appropriate" rather than "alternative" as a way of indicating that ADR relates to finding the most fitting way to resolve disputes. Sometimes there is no "A" used and simply the phrase "dispute resolution" is used, as a way to indicate that all approaches to dispute resolution are potentially considered. Whichever way the acronym is spelled out - alternative, appropriate, or just dispute resolution - the concept of ADR is based on expanding the tools available for resolving disputes.

Beyond a simple grouping of approaches, ADR also is conceived of as an idea, a philosophy. For many proponents of ADR, using different approaches to conflict resolution has a meaning or a larger goal. For example, there are those who see the use of ADR as part of the effort to bring peace to the world or heal a damaged community. Many prize the potential for results of ADR processes that go beyond what a court can order. There are others who see it as a way to improve the equality of parties in dispute. Yet others value the potential economies of ADR processes for courts, parties and society. Certainly not all participants in ADR or even those who develop ADR programs would consciously avow such lofty concepts, but there is generally some undergirding, though often unarticulated, set of beliefs, for any ADR effort.

What Is Court ADR?
Court alternative dispute resolution, or court ADR, refers to the application of ADR methods for resolving disputes outside of traditional litigation. Methods include:

  • arbitration (one of the most common methods used)
  • collaborative or cooperative law
  • early neutral evaluation
  • family group conferencing
  • mediation (another of the most common methods)
  • mini-trial
  • parenting coordination
  • private judging
  • sentencing circles
  • special master
  • summary jury trial
  • judicial settlement conferences (considered by some to be ADR and by others to be part of traditional litigation)

These ADR methods have different emphases that make them suitable for particular types of cases. Some forms of ADR, such as mediation, are intended to put decision-making power into the hands of the parties. Because of this, mediation has been found to be suitable for a wide variety of case types, from family to civil to small claims.

Other methods, such as early neutral evaluation or non-binding arbitration, are intended to provide expert input about the strengths and weaknesses of each side's case and the likely outcome. This makes these methods particularly well-suited to civil cases. Some are particularly suited to finality, such as binding arbitration. Others, such as parenting coordination, are intended to address ongoing conflict.

Certain ADR methods are used to effect goals specific to particular cases. For example, sentencing circles and family group conferencing are used with the goal of healing harm to the community caused by juvenile misbehavior. Parenting coordination is used to reduce ongoing conflicts between divorced parents and to refocus them on the needs of the children. Cooperative and collaborative law, while used predominantly in family law settings so far, are not based on the particular needs of family issues, but more on a desire to change the dynamic between the lawyers, re-orienting them toward settlement.

In the court setting, the common thread throughout is that through these processes the courts take the dispute out of the litigation forum and into another whose role is to in some way bring the parties to - or closer to - settlement. The two exceptions are binding arbitration and private judging.

The two most frequently used processes are mediation and arbitration. In mediation, a neutral third party, the mediator, facilitates a resolution of the dispute by the parties. (There are many forms of mediation. Some focus more on the resolution of the dispute and others more on the relationship between the parties.) The mediator helps the parties communicate their different perspectives, discuss their needs and interests, and explore ways to resolve their conflict in a mutually acceptable way. Although participation in mediation is mandatory in some settings, the process is voluntary in that the parties are not required to resolve their dispute and the mediator has no authority to determine the outcome.

Arbitration has multiple forms. In traditional, private, arbitration the parties agree on an arbitrator and on rules for making statements and presenting evidence to the arbitrator. The arbitrator then makes a decision to resolve the dispute. Although the decision may be either binding or non-binding by agreement of the parties, it is typically binding with limited appeal rights in court. When courts create arbitration programs, the awards are generally non-binding and the courts often select the arbitrators for the parties.

Settlement conferences conducted by judges in order to facilitate settlement short of trial are considered ADR programs by some courts. These programs push for finality through settlement and address a broad range of civil cases. The judges generally have a wide range of expertise they bring to bear.

Lawyers representing parties engaged in very large, complex civil litigation are most likely to use processes such as mini-trials, summary jury trials, private judging and special masters. The mini-trial gives the top decision-makers from all sides the opportunity to see what a presentation at trial from all sides would look like. With this information, they are better able to attempt to settle, either through negotiation, settlement conference or mediation. If that is unsuccessful, there is a neutral advisor who also attends the mini-trial who attempts to bring the case to resolution. This is somewhat different from a summary jury trial where a jury of six people drawn from the real jury pool hears abbreviated presentations and renders an advisory decision. This is intended to bring a voice of reality into the negotiations.

Both of those processes differ significantly from private judging and special masters. When using private judging the parties agree to hire an individual with expertise in the area and abide by his or her decision in the case. Sometimes the decision can be appealed as though it had been issued by a sitting judge, depending on local court rules. Special masters are appointed by the court, not the parties, to ensure that a court order is being followed.

Early neutral evaluation (ENE) is not as likely to be the province solely of large, complex civil litigation. Because early neutral evaluation can be more affordable than mini-trials, summary jury trials, and private judges, it can be used for mid-range civil litigation, too. ENE is a somewhat similar process to mini-trials and summary jury trials - lawyers present a knowledgeable neutral with information about their case, the neutral assesses strengths and weaknesses, and the parties receive an assessment of likely outcome at trial - with the difference being that ENE is done on a smaller scale and is specifically focused on providing an early assessment. These are processes that may be provided as part of an ongoing court program or conducted on a case-by-case basis.

Parenting coordination also can be part of an ongoing court program, but is more likely to be ordered on a case-by-case basis. In this process, a parenting coordinator works to resolve ongoing conflict between divorced parents concerning their children. This can be done through discussions that resemble mediation, and failing that, the parenting coordinator has authority to decide certain matters.

Family group conferencing, sentencing circles and other forms of restorative justice may be offered through the courts or through probation, social service or other agencies. For any of these processes, part of the goal is to shift power from the institutions into the hands of the affected individuals, family and community. The affected individuals include the person charged with the offense - whether juvenile or adult - and the person(s) against whom the offense was committed. Whether the focus is on working to resolve conflict, heal individuals and/or community, or other goals will depend on the program and the cases.

Cooperative and collaborative law are intended to change the way that law is practiced, engaging lawyers in settlement, rather than focusing on litigation. In collaborative law, the lawyers agree to engage in collaborative efforts to settle the dispute, and even to withdraw if they cannot settle the case short of trial. In cooperative law, the lawyers also agree to engage in various collaborative efforts, but they do not agree to withdraw from representation if the case goes to trial.

Whether inside a court program or in other venues, ADR offers many methods for resolving conflicts. Some mirror traditional court processes rather closely and some are quite different, but each offers its own alternative path.

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