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Avoid Trial through ADR

February 6th, 2009 · No Comments

Sometimes a court isn’t the best venue to solve a legal problem. In fact, many cases are resolved outside of court through various other means. Once way of resolving a legal issue is through Alternative Dispute Resolution (ADR) methods. ADR has often been viewed as a preferable method to trial. When a case uses ADR, this frees up the docket from the ever burdened courts. Also, ADR can often be less costly than trial. There are a few methods that fall under the ADR system, however the three most common forms are negotiation, mediation, and arbitration.

During negotiation the parties (plaintiff and defendant) meet to attempt to resolve the matter. During negotiation, the parties are in control of the meeting. If they reach a settlement during negotiations, this still will need to be filed with the court, if a lawsuit has already been filed. This lets the court know that matter has been resolved.

For a mediation, the process will actually be controlled by a trained professional, called a mediator. The mediator is trained in negotiations and conflict resolution and is there to help the parties reach an agreement. The job of the mediator is to be impartial, and assist with the creating an effective dialogue. While the mediator is there to assist, it is actually the parties themselves that lay out the terms of the agreement (similar to a negotiation). Although a mediator does charge a fee, it is often less expensive than the litigation process. Also, a mediation could last as little as a few hours, instead of the weeks, months, or even years that litigation can take. Furthermore, what happens during mediation is confidential. Thus, whatever occurs in the mediation room, will not become a part of the court records. Only the parties will know what happened. Whereas a court is a very public process and records are often public information.

Arbitration is actually more like a traditional trial than the other forms of ADR. Often, cases are submitted to arbitration in cases where a contract is involved. Many contracts have clauses requiring that arbitration is the means to resolve any dispute. During an arbitration, there is a limited amount of evidence presented. The parties can either agree on one arbitrator, or they can each select their own arbitrator and those two arbitrators select a third one to sit on an arbitral panel. Then, after a simplified trial process, including discovery and presenting evidence, the arbitrator(s) will make a decision. Like meditation the decision is not public record. However, unlike mediation, the decision is actually made by the third party/parties.

In some cases, the choice to use ADR is optional. However, in some courts, there may actually be a requirement that the parties use an ADR method before resorting to a traditional trail. ADR traditionally occurs outside of the court system, but in cases where ADR is mandatory, ADR may be a part of the court system. To find access to various courts and their websites to learn more about state court systems, visit www.CourtReference.com.

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Tags: Courtreference.com

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