Alternative Dispute Resolution: Cheaper and Faster
Not all disputes need to end up in the legal system. There are several forms of Alternative Dispute Resolution (ADR) that can help people resolve disputes far faster, far cheaper, and with more flexibility than the legal system can ever offer.
Mediation is a form of ADR where the parties use a neutral mediator to facilitate communication. Oftentimes, once a dispute begins, the parties fail to communicate well, and dig in their heels on emotional issues. A good mediator can help parties realistically assess their positions, get past emotional issues, and identify the goals that each side of a dispute has. A good mediator will also filter the communications between the parties to diffuse the emotional components so that the dispute does not escalate.
With mediation, a resolution is always voluntary. The mediator cannot make rulings or force a party to accept an agreement involuntarily. While the mediation process itself is usually voluntary, a judge has the power to order parties to a lawsuit to mediate in good faith. Although once a case is in the court system a mediation will often involve attorneys, nothing prevents parties to a dispute from engaging a mediator before getting lawyers involved. Doing so can achieve remarkable results. The person acting as a mediator is often an attorney, however anyone can mediate a case. In a construction dispute, for example, it may make sense to hire a contractor or architect that both parties respect as the neutral mediator. In complex matters, there may be several mediators who bring different skill sets to the mediation table.
A good mediator will set out some ground rules for communication, respect, etc. Sometimes, parties do not want to be present in the same room with their opposing parties, so the mediator will talk to the parties separately in a “shuttle diplomacy” mode. As a mediation progresses, the issues should become more focused, and each party should have a better assessment of the relative strengths or weaknesses of its position.
If mediation is successful, the parties should sign an agreement that sets out the essential terms of what they have agreed to. The agreement, if properly written, is an enforceable contract. Even if a mediation does not lead to a resolution, it is an invaluable tool for not only exchanging information, but learning about ones’ own position.
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Copyright (c) 2013 Adam B. King, Attorney at Law, PC
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