More and more, courts are offering parties the opportunity to resolve their disputes outside of the courtroom. The resources below will help to explain how these alternatives to trial operate.
Don’t know what alternative dispute resolution (ADR) – mediation, arbitration, family group conferencing and others – is?
The following are commonly used ADR processes
In mediation, a neutral third party, the mediator, helps the parties resolve their disputes. (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 talk about their different points of view, discuss their issues and concerns, and explore ways to resolve their conflict in a way both parties feel is acceptable. 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 decide the outcome.
See How Does the Mediation Process Work? for an overview of the mediation process.
This process has multiple forms. In traditional, private, arbitration the parties agree on an arbitrator and on rules for making statements and presenting evidence to the arbitrator. The arbitrator then makes a decision to resolve the dispute. Although the parties may or may not be able to reject the arbitrator’s decision, it is typically binding with limited appeal rights in court. When courts create arbitration programs, parties generally are able to reject the arbitrator’s decision and the courts often select the arbitrators for the parties.
Settlement conferences are conducted by judges in order to facilitate settlement before going to trial. Generally, the conference is held with the attorneys and not the parties, but some judges prefer to have the parties present.
See In Family Law, How is Mediation Different from a Settlement Meeting to learn about the key differences between mediation and settlement conferences.
In this process, a parenting coordinator works to resolve ongoing conflict between divorced parents concerning their children. This can be done through discussions that resemble mediation. If that fails, the parenting coordinator has authority to decide certain matters.
See Parenting Coordination: Frequently Asked Questions for more information on the process and its benefits.
Family Group Conferencing, Sentencing Circles and Other Forms of Restorative Justice
These may be offered through the courts or through probation, social service or other agencies. For any of these processes, part of the goal is to shift power from the institutions into the hands of the affected individuals, family and community. The affected individuals include the person charged with the offense - whether juvenile or adult - and the person(s) against whom the offense was committed. Whether the focus is on working to resolve conflict, heal individuals and/or community, or other goals will depend on the program and the cases.
See Community Conferencing for Young People in Conflict for a description of the community conferencing process and the conflicts for which it is more suitable than mediation.
Cooperative and Collaborative Law
These are intended to change the way that law is practiced, engaging lawyers in settlement, rather than focusing on litigation. In collaborative law, the lawyers agree to engage in collaborative efforts to settle the dispute, and even to withdraw if they cannot settle the case short of trial. 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.
See Collaborative Law FAQs for more information.
Need a mediator?
The following resources will help you to figure out who to hire.
- Choosing a Divorce Mediator lists the factors to consider when selecting a divorce mediator.
- Five Steps to Choosing a Qualified Mediator offers advice for finding a mediator that fits your needs.
Want to know what a mediator should do and what standards they should follow?
- What Does a Mediator Do? Tells you how mediators help you during the mediation.
- Check the Model Standards of Conduct for Mediators or, for family cases, check the Model Standards of Practice for Family and Divorce Mediation. These are widely accepted and used by mediators in many settings in which a court has not adopted particular standards.
Want to know how the ADR process is supposed to work in a particular court?
- First, check the local court rules. They are often found online and should explain issues such as confidentiality and mediator and attorney responsibilities. Many local rules can be found in Court ADR Across the U.S.
- In some states, statewide rules govern the ADR process. These can also be found in Court ADR Across the U.S.
- A number of states have ADR agencies that govern their statewide systems.
- If there are mediator standards in the state in which the mediation took place, these would also be helpful. Standards often set general ethical and procedural guidelines for the mediator to follow. These can be found in Court ADR Across the U.S.
Already participated in mediation and feel that the mediation was improperly handled?
- If the state in which the mediation was held has a grievance process, file with the state. Links to state court ADR organizations are a good place to start.
- If the state does not have a grievance process, contact the court in which the mediation originated.
Have a consumer dispute with a business that could be mediated?
- Contact the Better Business Bureau in your area to see which ADR process is available.
- Community mediation centers often mediate consumer disputes. A listing of these centers is found on the National Association for Community Mediation web site.
Have another question?
- Mediate.com has a number of articles written to help the public figure out ADR.