Alternative dispute resolutions are becoming more popular as a result of the increasing backlog of cases in the court systems.
In fact some states even recommend parties to resolve their issues trough alternative dispute resolutions before going through the process of litigation.
There are a lot of advantages in going through alternative dispute resolutions such as:
• ADRs generally cost less than formal litigation.
• Parties are treated in a much more relaxed procedure.
• It is generally fast moving and efficient.
• All information is kept private and confidential.
• Disputing parties have more control over the process.
• Informal investigation is allowed.
• Parties may agree to share and exchange documentation that is beneficial to the award.
• Both parties have a say on who the arbitrator or mediator will be.
• No jury of one’s peers.
However, there are also disadvantages like:
• Lack of full range of discovery.
• Limited cross-examination of witnesses.
• Difficulty in appealing award or resolution.
• No documentation that will explain resolution.
• Punitive damages will not likely be given.
Both parties can weigh the pros and cons of going through formal litigation or going through an alternative dispute resolution first.
The two most popular type of alternative dispute resolution process are mediation and arbitration.
Mediation
In mediation, both parties come together before a certified mediator whose goal is to bring the disputing parties together towards a common ground and reach an agreement.
In mediation, the mediator guides and assists both parties until an agreement in a resolution is made.
The disputing parties should both agree on the terms of the resolution.
The mediator may suggest a resolution but he/she has no power to force that resolution to the parties.
Mediation has become a popular alternative dispute resolution process for family law cases like child custody, parenting time and child support although it is also used in business and employment disputes.
Arbitration
Arbitration on the other hand, involves a more court like system than that of mediation.
With arbitration, a qualified arbitrator would hear out both sides before coming out with a resolution.
Most arbitration cases are results of pre-dispute contracts where both contractual parties agreed on arbitration, instead of litigation, as the means of resolving disputes or conflicts.
Both parties should agree on who the arbitrator is going to be which is unlike in the court systems where a judge is assigned on the case.
An arbitrator is usually an attorney, a retired judge or an expert on that particular field.
The job of an arbitrator is to stay as objective as possible and provide a decision or resolution that he/she think is fair.
It does not necessarily have to be advantageous for both parties. In fact, similar to litigation, there is usually a winner and a loser in arbitration.
Arbitration is most commonly used to resolve conflicts and disputes in construction contracts, banking disputes, intellectual property disputes, medical malpractice, and employment harassment and discrimination cases.
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