Posted on July 22, 2020
What Is ADR, and What Are the Benefits?
ADR stands for advanced dispute resolution. It refers to a variety of ways you can solve a legal dispute, all of which avoid a trial and mostly keep you out of court. This includes arbitration, adjudication, collaborative law, neutral evaluation, and mediation. What are the benefits of ADR?
In general, ADR is cheaper than going to court. You eliminate court fees. You may or may not need a lawyer. The mediation sessions or appearance in front of an arbiter is generally faster than a court case. This means your attorney will bill you for fewer hours even if you do need to hire expert legal advice. You can even take advantage of free and reduced-fee mediation within the court system, such as when you need to hash out a new child custody schedule.
Yet ADR can save businesses a lot of money, too. ADR is ideally suited for multi-party disputes. For example, ADR is a great way to hash out fights with contractors and subcontractors, such as when your painter is suing you the home owner because the general contractor didn’t pay them.
When something goes to trial, it becomes public record. People going through a divorce may not want the allegations of adultery or stories of drunken escapades becoming public record. This is why they may seek to go through a mediated divorce via ADR, though the divorce decree itself is public record. Note that conferences and arbitration may not be suitable if one person is a victim of domestic violence. It obviously isn’t an option if you can’t locate the other party.
Businesses often seek ADR to keep conflicts out of the public record. It isn’t just a way to keep sexual harassment charges out of the limelight. It may be as simple as arguing over who owns the intellectual property rights to someone an employee invented. By using ADR, their trade secrets don’t become public knowledge. By taking customer complaints to arbitration, companies may be able to keep employee mistakes from hitting the headlines, too.
ADR is much more flexible than going to court. You can choose arbitration which is similar to court cases, or you can attend collaborative mediation. The rules of evidence in ADR are more relaxed than those in court. However, you should consult with an attorney before you assume that an unauthorized recording or information gathered via keystroke loggers can be used in your case.
Advanced dispute resolution also provides more potential outcomes than sending someone to prison, issuing a fine or sending a cease and desist order to make them stop. You could negotiate a trade of intellectual property rights or literal property. You might agree to sell part of a stake in a firm and reduce your decision making authority.
You can also choose arbiters who are more familiar with your type of case. For example, you could choose an arbiter with a financial or engineering background instead of a judge who used to be an attorney. This is invaluable if you’re dealing with complex financial fraud or a potentially faulty product. On the flipside, you don’t have a judge making decisions on something they know nothing about.
A common complaint about the United States legal system is how slow it is. There are far more cases in the pipeline than what the courts can handle. That’s why someone may wait months or years for a case to go to trial. ADR is generally much faster. You might resolve contractual disputes in a matter of weeks, not years. That is invaluable if you need to resolve the argument over the scope of work in order to get your new building finished in a timely manner. Going to arbitration when fighting over insurance claims will get you the money much faster than when you try to take them to court. Or you’ll get your child support agreement modified via ADR shortly after your hours were cut instead of being legally obligated to pay more than you can afford.
ADR gives everyone involved a greater degree of control. If you go to trial, the courts will set a date. And given the sheer backlog, you can’t do much more than accept the one open date or defer it to a later, unknown date. If you take advantage of mediation or arbitration, you can choose who hears the case. You may be able to choose where the case is heard, instead of having to travel to the only federal courthouse in your area. Furthermore, you have a much wider range of dates available to you.
One of the issues that arise with ADR is the problems that come with unfair power dynamics. An individual fighting a large corporation may not have the resources available to fight their case on their own. This is why you should have legal counsel even if they say it is not required, since your settlement with the arbiter may prohibit you from suing or going to court later. However, you may have the option to take the dispute to court, as well. Know whether the ADR process results in a binding or non-binding resolution.
For example Los Angeles ADR generally isn’t suitable if the two parties are combative. This means that a collaborative divorce isn’t possible if the two sides hate each other. Nor is ADR an option if you’re fighting tooth and nail for documents essential to discovering what happened. Because the most confrontational cases aren’t a fit for ADR, these cases have a reputation for being relatively calm and uneventful.
Yet there are a number of factors that make ADR less stressful than the average court hearing. You eliminate the anxious anticipation of the outcome as you wait months to be heard. High-low arbitration sets upper and lower limits to potential monetary payouts during settlement, eliminating the fear of a multi-million dollar judgement. ADR has fewer steps and less paperwork, and that reduces the amount of work involved. You probably won’t have to take the stand much less have tons of personal information divulged in the name of giving the other side everything they need to defend themselves. Case conferences in particular are limited to a single issue, the case at hand, so no one can bring up personal baggage as part of the hearing.
You can choose an arbiter who is more of a diplomat than a judge, and that removes some of the emotion from the meeting room. Simply by choosing someone who facilitates communication and moves both parties toward a mutually agreed upon solution is less stressful than worrying about how the judge will rule.