ALTERNATIVE DISPUTE RESOLUTION
The most popular form of ADR is mediation (see below) but ADR includes any method of conflict resolution that doesn't end up in a full blown trial. Of course, the prospect of a full blown trial is one of the main motivators driving the parties to settle their dispute.
ADR includes arbitration, mini-trials as well as the seeking of an informal opinion from a mutual friend or acquaintance.
MEDIATION: Does it Work?
Mediation is in; litigation is out. If all those espousing this theme are to be believed, the Courts will be empty within the next decade. What is all this hype about? Read on and be enlightened.
Mediation is a process where the parties come together with a neutral other (mediator) to try to work out their differences. It can be contrasted with litigation which is an adversarial process where the winner takes all. The mediator usually brings the parties together and asks them to describe their problem. This is followed by a discussion together where the strength and weaknesses of each party's position is described. The mediator probes for areas which may lead to compromise. Almost always the parties are separated at some point for caucuses with and without the mediator.
Mediation, where it works is certainly less expensive than litigation. Additionally, mediation may preserve a relationship which would almost certainly be destroyed by the litigation process. Publicity may be avoided.
The question is whether it works or not. If mediation fails, the process has added an extra cost to the resolution of the dispute. Your disclosure of your position may have assisted the other side in preparing its case. As with most things in life there are risks and benefits to be gained. If I believe there is a genuine, bona fide desire in the other camp to settle the dispute by mediation, I try to mediate, otherwise not.
What can be done to increase the chance of making the mediation successful?
First of all, select the right mediator. He should be reputable so that both sides are willing to reveal their whole case to him. The mediator should push you towards full disclosure but must respect your limits. He must possess the skills both gross and subtle necessary to nudge the parties towards their common ground. He must make all sides aware of the downsides of not settling, the uncertainty of prevailing and the benefits of taking a bird in the hand. Most of all, he must be able to bridge the final gap and close the settlement. In the flush of success and the exhaustion of closure, he must secure a written deal which puts the matter to rest once and for all.
Sometimes mediation hits a snag on a small issue and a mini-trial, really a form of arbitration is held. Ideally, your mediator who has already learned the case should have the requisite training to handle this task: if not the mini-trial will be substantially more expensive.
Before embarking on the mediation, you will need to be prepared, almost as prepared as for a trial. Mediation is a rational process: issues of fact and even of law will sway the process in your favour or against you. You should also have your needs thought out in a thorough manner. The mediation will focus on a deal you can "live with".
Do you need a lawyer to attend with you at the mediation? As with any contentious dispute, you are better off with counsel. Your lawyer will need a strong head to guide you away from settling at any cost. He needs to know what is workable. He will not be as emotionally involved in the process: cool heads think best. His presentation skills will also set the range of possible settlements appropriately.
The answer to the question: Mediation is a useful tool in the settlement of disputes. But, as always, litigation is the final resort if all else fails.