Court alternative dispute resolution, or court ADR, refers to the application of ADR methods for resolving disputes outside of traditional litigation. Methods include:
- arbitration (one of the most common methods used)
- collaborative or cooperative law
- early neutral evaluation
- family group conferencing
- mediation (another of the most common methods)
- parenting coordination
- private judging
- sentencing circles
- special master
- summary jury trial
- judicial settlement conferences (considered by some to be ADR and by others to be part of traditional litigation)
These ADR methods have different emphases that make them suitable for particular types of cases. Some forms of ADR, such as mediation, are intended to put decision-making power back into the parties' own hands. Because of this, mediation has been found to be suitable for a wide variety of case types.
Other methods, such as early neutral evaluation or non-binding arbitration, are intended to provide expert input about the strengths and weaknesses of each side's case and the likely outcome. This makes these methods particularly well-suited for civil cases. Some types of ADR are particularly suited to finality, such as binding arbitration. Others, such as parenting coordination, are intended to address ongoing conflict.
Certain ADR methods are used to affect specific goals for particular cases. For example, sentencing circles and family group conferencing are used with the goal of healing harm to the community caused by juvenile misbehavior. Parenting coordination, on the other hand, is used to reduce ongoing conflicts between divorced parents and refocus them on the needs of the children. Cooperative and collaborative law, while used predominantly in family law settings so far, are not based on the particular needs of family issues, but more on a desire to change the dynamic between the lawyers, and re-orient them toward settlement.
Yet, despite their differences, the common thread with each form of ADR is to take the dispute out of the litigation forum, and bring the dispute into a forum that guides the parties to, or closer to, settlement. The two exceptions to this, of course, are binding arbitration and private judging.
The two most frequently used ADR processes are mediation and arbitration. In mediation, a neutral third party, the mediator, facilitates a resolution of the dispute by the parties. (There are many forms of mediation. Some focus more on the resolution of the dispute and others more on the relationship between the parties.) The mediator helps the parties communicate their different perspectives, discuss their needs and interests, and explore ways to resolve their conflict in a mutually acceptable way. Although participation in mediation is mandatory in some settings, the process is voluntary in that the parties are not required to resolve their dispute and the mediator has no authority to determine the outcome.
Arbitration has multiple forms. In traditional, private arbitration, the parties agree on an arbitrator and on rules for presenting evidence to the arbitrator. The arbitrator then makes a decision that resolves the dispute. Although the decision may be either binding or non-binding by agreement of the parties, it is typically binding with limited appeal rights in court. When courts create arbitration programs, the awards are generally non-binding and the courts often select the arbitrators for the parties.
Some courts consider settlement conferences, a process in which a judge facilitates a settlement between the parties, to be a type of ADR. These programs push for finality through settlement and address a broad range of civil cases. The judges that handle these types of cases generally have a range of substantive and procedural expertise.
Lawyers representing parties engaged in very large, complex, civil litigation are more likely than other lawyers to use processes such as mini-trials, summary jury trials, private judging and special masters. The mini-trial gives the top decision-makers from each side the opportunity to see what a presentation at trial from all sides would look like. With this information, they are better able to attempt to settle, either through negotiation, settlement conference or mediation. If that is unsuccessful, there is a neutral adviser who also attends the mini-trial and attempts to bring the case to resolution. This is somewhat different from a summary jury trial, where a jury of six people drawn from a jury pool hear abbreviated presentations and render an advisory decision. This type of dispute resolution is intended to bring a voice of reality into the negotiations.
In private judging, the parties agree to hire an expert in their area of conflict, and agree to abide by the expert's decision in the case. Sometimes, depending on local court rules, the decision can be appealed like it could if it had been issued by a sitting judge. In contrast, special masters, are appointed by the court, not the parties, to ensure that a court order is being followed.
Early neutral evaluation (ENE) is somewhat similar to mini-trials and summary jury trials, where lawyers for a case present to a knowledgeable neutral, who then assess the strengths and weaknesses of the case, and then informs the parties with an assessment of their likely outcome at trial. ENE may be used for complex or mid-range civil litigation. Notably, ENE is often done on a smaller scale, and is intended specifically for providing the parties with an early assessment of their case.
Parenting coordination may be part of an ongoing court program, but is more often ordered on a case-by-case basis. In this process, a parenting coordinator works to resolve ongoing conflict between divorced parents regarding their children. This can be done through discussions that resemble mediation. If mediation fails, the parenting coordinator has authority to decide certain matters.
Family group conferencing and sentencing circles are other forms of restorative justice that may be offered by the court, probation or social service agencies. With these types of ADR, the goal is to shift power from the institutions, and into the hands of the affected individuals, family and community. The affected individuals include the person(s) charged with the offense - juvenile or adult - and the person(s) against whom the offense was committed. The focus for these types of ADR processes will depend on the nature of each case and the type of court program, and are likely to be to resolve conflict or to heal individuals and/or the community.
Finally, cooperative and collaborative law are intended to change the way that law is practiced, by shifting the focus from litigation to settlement. In collaborative law, the lawyers agree to engage in collaborative efforts to settle the dispute, and are expected to withdraw from representation if they cannot settle the case before trial. In contrast, in cooperative law, the lawyers also agree to engage in various collaborative efforts, but they do not agree to withdraw from representation if the case goes to trial.
Whether inside a court program or in other venues, ADR offers many methods for resolving conflicts. As you can see, some forms of ADR mirror traditional court processes rather closely where others do not. Regardless, each type of ADR offers parties to a dispute their own unique path towards resolution.
Published by the Judicial Council of California
Abstract: A guide for those new to ADR, this California courts publications provides a quick overview of mediation, arbitration, and settlement conferences, including benefits of these processes and when they are and are not appropriate.
Abstract: Resources including practice guides, toolkits, research aids, videos, reports, and directories, are divided by dispute resolution sub-topic, listed alphabetically.
Published by Mediate.com
Abstract: A number of introductory articles about mediation are found on this web page. The topics include overview of mediation, what mediators do, mediator selection, and when mediation would be most effective.