Chapter 7: Decide Which ADR Process to Use

Now that your planning committee is in place and you know what you want to accomplish with your ADR program, it is time to decide which ADR process to use, e.g., mediation, early neutral evaluation, arbitration, parenting coordination. Exactly how the ADR process will function is a critical step in the design process. To do this you should explore your ADR options and then decide on a process.

This step is more complicated than it may appear. From the beginning, your planning committee has likely been discussing, for example, the “mediation” program or the “parenting coordination” program. Nonetheless, at this step, many underlying policy issues (e.g., good faith, confidentiality) are settled as the planning committee decides about which process to use and how it will function. You will need to decide how to define the process in your court rules and other publications.

In most, but certainly not all, U.S. jurisdictions, mediation has become the default court ADR process. Indeed, research confirms that this has been a good decision: when given the choice, parties prefer mediation, at least in civil cases. Even so, mediation programs vary greatly, so the planning committee will need to make a lot of decisions about exactly how a mediation program will work. Alternatively, if you are in a jurisdiction that already has a mediation program, you might be interested in exploring other ADR processes.

Explore Your ADR Options 

A good way to begin the search for the right ADR process is to consider the individual characteristics that distinguish different processes, and select the ones that best meet your program’s needs. ADR processes can be defined by traits that exist on continua. See “Decide on Your ADR Process” below for examples of how the traits work together to form processes. For example, most ADR processes correlate to a certain level of confidentiality, with mediation having an expectation of confidentiality (with defined exceptions) while arbitration and early neutral evaluation are not generally considered to be confidential processes.

When your values are clear to you, making decisions becomes easier.

- Roy E. Disney

It is more effective to start from the traits that serve your program goals and then select the process that best matches them, than to start with the assumption that your program will use a particular process and assume that its traits will fit. Building up from the fundamental characteristics that meet your goals helps to ensure that you can deliver the program you need while maintaining the integrity of the process you choose.

Why is process integrity important? The integrity of a process, or the consistent application and interaction of its defining characteristics, is important for two major reasons. First, for an ADR process to maintain legitimacy in the view of its participants, the characteristics must meet party and advocate expectations. For example, confidentiality is a fundamental trait of mediation. If a judge orders a mediator to testify about what happened in a mediation, the underlying premise that parties in a mediation can speak freely (because the discussions are confidential) is profoundly damaged. This damage can be done even if all the parties, the mediator and the judge in a current case agree to the testimony because future parties and their lawyers can no longer expect that their mediation will be truly confidential. Maintaining consistent application of expectations in a court program is vital to the ongoing health of the program. If the underlying premises are violated, word will get around.

Changing one characteristic can throw off the process’s total function. The characteristics of a process fit together like puzzle pieces. Mediation, for instance, relies on core principles of party self-determination, confidentiality, voluntariness and mediator neutrality. If you tinker with one of those elements, there is a domino effect. If your program were to ask mediators to determine and report whether parties participated in good faith (applying subjective criteria, such as whether parties were “prepared”) this would damage the parties’ expectation of mediator neutrality and confidentiality. Additionally, making that kind of determination is different from what mediators are trained to do. If your planning committee decides your program needs to have neutrals determine good faith, you will need to review what that does to all the parameters of the process and decide what – other than mediation – to call it.

The key to process integrity is to be sure you consistently apply the characteristics of a given process and that participants can rely on what to expect in a given process. Those characteristics can be imagined as points on continua. When a set of points on each continuum is determined, together they paint a picture of an ADR process. The continua include:

• Whether participation in the ADR process is required
• How confidential the process is
• Whether the neutrals are impartial decision makers or neutral as to the outcome
• What role good faith participation plays
• How binding the process is

Is participation in the ADR process required? 

The first question you need to ask is whether you want to mandate that parties participate in ADR (mandatory), have them request to participate (opt-in), or assume they will participate unless they explicitly decline to participate (opt-out).

• Mandatory: parties are required to participate in some type of ADR – typically mediation – before their case can move forward in litigation. Programs include various exceptions to the mandatory nature of ADR participation.
• Opt-in: cases are only referred to ADR if someone (e.g., judge, lawyer, party, court staff) takes an action. These are often called voluntary programs.
• Opt-out: all cases are expected to go to ADR unless a party takes an action. This differs from mandatory programs because in opt-out programs parties may simply not participate if they choose as compared to mandatory programs where parties must meet certain criteria to avoid participation in the ADR process.

There are pros and cons for programs that take mandatory or opt-out approaches as compared to those that take an opt-in approach. The main benefit to mandatory/opt-out participation is that it leads to many more litigants experiencing the benefits of the ADR process. It also reduces the judges’ responsibility to determine which cases should be referred to ADR and reduces arguments among attorneys as to whether a given case should be referred. The main downside about mandatory referral to mediation, as compared to other forms of ADR, is that mediation is a voluntary process. Some argue that “mandatory mediation” is an oxymoron. If referral to mediation is mandatory, the mediator and the court have even greater responsibility to ensure that the actual mediation process and any eventual resolutions are strictly voluntary.

The main benefit to opt-in referral is that the participants are more likely to be committed to the process and to any result. In processes based on self-determination, such as mediation, a larger proportion of parties are more likely to reach agreement, and may be more likely to perceive the process as fair, than if they are mandated to participate. The most significant downside is that fewer cases enter ADR if referral is decided on a case-by-case basis.

Is the ADR process confidential? 

An essential characteristic of many ADR processes is confidentiality. You will have determined what the context is for confidentiality, and therefore what your confidentiality options are, when you explored the legal environment for ADR. Now you need to decide how confidentiality will play out in your ADR process.

Confidentiality provisions may limit what the participants can say publicly about what transpires in ADR, they might provide a privilege that can be asserted to block testimony in court, or both. Similarly, confidentiality can pertain to what happens during an ADR process, to the outcome of an ADR process (e.g., mediation agreement or arbitration award) or to both. Deciding who may assert a privilege, which participants will be bound by confidentiality, and any limits to privilege or confidentiality also helps determine which process you will use.

The role confidentiality plays in ADR varies greatly from process to process. In mediation, for example, confidentiality is central, while it is not typically expected in court-related arbitration. The outcomes of mediation may or may not be confidential, however. In commercial litigation, the parties may elect to have their mediated settlement remain confidential. By doing so, they lose the power of the court in future enforcement of a judgment. On the other hand, some agreements, such as those regarding child custody and parenting time, may have to be approved by the court as being in the best interests of the children, even though they were mediated in a confidential setting.

Are neutrals decision makers or are they neutral as to the outcome? 

Neutrals in court ADR programs generally are not given the authority to make binding decisions. That is left to judges. Whether the neutrals make any decisions depends on which process is used. In mediation, one of the core principles is party self-determination. Therefore, mediators don’t make decisions about the case outcome. There are some court arbitration programs where the neutrals do make decisions, but even those are typically not binding. Early neutral evaluation (ENE) is a relative of non-binding arbitration. In ENE, neutrals with expertise in a given area of law provide non-binding assessments of how they anticipate a case will be resolved as a tool for fostering agreement between the parties.

What requirements exist, if any, for good faith participation? 

Good faith is one of the most vexing elements in a court ADR program, especially in any process that is confidential or in which the neutral does not have decision-making authority. This is especially true when designing mediation programs.

On the one hand, there is an almost universal desire to have parties in mediation participate in good faith. After all, if they are not acting in good faith, then the whole process is likely to be unfair. On the other hand, if a determination of bad faith must be made, who will make it and based on what information? The first person in a position to determine good or bad faith is probably the mediator. But a mediator cannot investigate sufficiently to make this determination and still remain neutral. A judge is the other person who could investigate and make this determination, but in order to do so, the judge needs information from the mediator, thereby violating confidentiality.

There are two workable paths that programs typically take. The first is to define good faith only by objective criteria. If the parties show up with someone with authority to settle, they are considered to have acted in good faith. (Even then, the question of authority can raise issues.) The other option is for your planning committee to clearly define the process as something other than mediation if the neutral will have this kind of decision-making responsibility. If all participants know the limits of confidentiality and neutrality, the court ADR program can meet the needs of the parties. In doing so, however, it is important for the planning committee to ensure the program parameters are understood by all the parties. The first step is not to call something “mediation” if it does not follow the parameters of mediation, including self-determination and confidentiality. Before making the decision to take this path, the planning committee also needs to consider what will be lost by constraining neutrality and confidentiality. The parties are less likely to be forthcoming in their settlement discussions and may be less trusting of a process that may shift as it progresses.

Apply This Advice to Process Design

One statewide foreclosure mediation program designed an ADR system that was similar to mediation in many ways, except the mediator decided whether parties had met particular good faith standards. The court decided to call it “dispute resolution” rather than mediation.

Are the outcomes of ADR processes binding? 

The final continuum to consider is whether the result of an ADR process is binding or nonbinding, i.e., whether the parties are required to adhere to it or not. While this may seem like simply two options, there are additional possibilities. For example, rules for a court’s nonbinding arbitration program can place pressure on parties to accept awards by assessing costs for rejecting an arbitration award or for rejecting an award and not achieving a better outcome at trial. Such costs can serve to make the parties less likely to challenge the award by placing obstacles in the way of moving the case back to court.

On the other hand, mediation is generally considered to be a non-binding process because reaching agreement is completely voluntary. However, agreements reached in mediation typically contain the elements of a contract, so that mediations that reach agreement are most likely to be binding to the same extent as a contract. Indeed, agreements reached in mediation may be entered as court judgments, making them quite binding.

Decide on Your ADR Process 

Once your planning committee understands the environment that shapes the court ADR options and the factors to consider, they can make a well-reasoned selection of an ADR process. The following are some typical program processes, including in what types of cases they are used, the program characteristics and some issues to consider for that particular process.

Pitfalls to Avoid When Deciding Which ADR Process to Use

Be sure an ADR program is really the right way to address the issue the court is facing.

As this guide has emphasized, it is essential that the planning committee is clear about why the court is planning an ADR program. Stop and ask whether ADR is the way to go, or if there is a better way to meet the perceived need. For example, might a therapeutic justice court or active case management be better? In answering that question, the shape of the ADR program will crystallize… or ADR will fade into the background as a better idea rises.

Conclusion

Selecting an ADR process is more complicated than simply deciding to implement a mediation program. By working through the factors that define various processes, your planning committee will identify the process that meets the needs of your particular jurisdiction.

Download Chapter 7: Decide Which ADR Process to Use