Mediation:
One Form of Alternative Dispute Resolution

Many people assume that the best way to manage disputes is to file a court action. While courts are vital and necessary institutions to resolve differences that people cannot resolve themselves, before initiating a court proceeding, there are other approaches that may yield satisfactory results. These approaches other than litigation are known under the general label of Alternative Dispute Resolution (informally as ADR).

ADR has many forms. Negotiation to achieve a settlement is one of the most basic forms of ADR. Like old-fashioned diplomacy, a party may engage the services of an agent (typically an attorney) for representation and communication with the opposing party.

Mediation is another form of ADR. Disputing parties engage the services of a trained neutral who serves to facilitate a productive conversation between the parties. The mediator does not take sides with either party but helps each party to articulate his or her wishes and work toward common ground to fashion a settlement. Notably, in many family and other civil disputes, courts routinely order mediation before any formal hearings take place to allow the parties to attempt to work out their differences before the imposition of a court order. Mediation is among the most cost-effective forms of ADR because both parties are in the same place at the same time and because the fee mediation services is typically shared by the parties. Arbitration is another ADR approach that is frequently used in business disputes. Parties engage the services of a trained neutral, but the procedure itself is much more structured form of ADR than a mediation. An arbiter takes formal testimony and prepares a written decision based on findings that emerge during the proceeding. Arbitration can proceed much more quickly than litigation, but the parties lose their rights to appeal the arbiter’s decision. Because of its similarity to a trial, arbitration can be expensive.

The collaborative law process is a relatively new form of ADR. In this approach, the parties both agree to refrain from engaging in litigation. They promise to participate in good faith negotiations to achieve a settlement. While attorneys are very much involved in the collaborative law process, other professionals such as financial advisers, child specialists or social workers may participate as well. If the collaborative law process fails, the parties may engage in litigation with the understanding that all of the professionals that they have engaged, including their attorneys, are disqualified from any subsequent litigation.

Choosing the most attractive ADR process requires thoughtful analysis of the special sensitivities of the dispute. There is no “one-size-fits-all” mechanism that will work for every person in every case. And of course, in some situations, only a court decision will end a dispute. However, before immediately jumping to file a court action, it is prudent to consider which particular ADR approach may best apply to solving a conflict.