31 Jan

Alternative Dispute Resolution (ADR) refers to a variety of settlement methods. The goal in ADR is to help the parties reach a settlement and reduce the time and cost of protracted litigation. 

One of the most well-known forms of ADR is mediation. Mediation can be a path to avoid litigation. Parties hire a neutral mediator and work together to attempt to reach an amicable agreement. Reaching that agreement may involve the parties each having consulting attorneys on the side to provide legal advice or parties may have their attorneys attend mediation with them. 

Mediation is not only effective as a means to avoid litigation, but it can also be used to assist parties already in litigation to reach a settlement. Sometimes when litigation has become costly and time consuming, parties benefit from seeking assistance from a neutral person to help resolve one or more issues that are holding up settlement. 

Another form of ADR is conciliation. This also can apply to parties who want to avoid court or who are in the middle of litigation and are unable to reach a resolution without going to trial. While conciliation also involves working with a neutral, the neutral, while not giving legal advice, does talk to the parties about how their case should resolve under the facts of the case and often explains to the parties how a judge is likely to rule after a trial. A conciliator may review court documents, including motions and pre-trial memorandums. A conciliator takes the time to work with the parties, and usually their attorneys, to help reach a resolution so that a trial or ongoing litigation can be avoided.  A conciliator can be utilized for all unresolved issues or can be issue specific. 

When parties are unable to reach an agreement in conciliation and still want to avoid a trial in the probate courts, they may have the option to enter into arbitration.  Arbitration can be binding, or non-binding based on what the parties elect. The arbitrator acts as a judge in the matter and hears evidence and makes rulings. The benefit of arbitration is that parties can work with an arbitrator on their own schedule and the arbitrator, at the parties’ cost, can often give as much time as is needed to hear all evidence that the parties and counsel want to have heard.  It may be less expensive than having a trial at a court and often can be addressed much sooner than a trial could be scheduled. 

Ongoing litigation is costly and can be emotionally draining on parties. ADR can often help parties reach a resolution without having to engage in extensive litigation or to avoid a trial. ADR does not always resolve all issues and may not be appropriate for every case and some parties may need to have their case proceed through the court system. The use of ADR is fact dependent, however it can be an effective tool in reaching a resolution.