An expert in Alternative Dispute Resolution, Elinor Whitmore B.A., LL.B., LL.M., C.Med is Vice President of the Stitt Feld Handy Group, a division of ADR Chambers, located in Toronto, Canada. The company offers professional development programs around the world and provides courses that teach people how to resolve conflicts, negotiate better deals, improve customer service skills, and improve workplace coaching skills.
What is Alternative Dispute Resolution and what is your experience in this area?
Alternative Dispute Resolution or “ADR” refers to any process for resolving disputes other than litigation. Therefore, negotiation, mediation, arbitration, using an ombud, and early neutral evaluator are all forms of ADR. That said, when people use the term “ADR” they are frequently referring to either mediation or arbitration.
I work for ADR Chambers which is the world’s largest dispute resolution service provider. For more than 20 years, ADR Chambers has provided conflict resolution services internationally.
ADR Chambers’ dispute resolution services include mediation, arbitration, ombud services, investigation, neutral evaluation, med/arb, fairness monitoring, workplace restoration, and private appeals. ADR Chambers’ neutrals are experienced dispute resolution professionals and include many top mediators, arbitrators, retired judges, and experienced lawyers. They are dedicated to helping legal and business communities resolve disputes in an efficient and cost-effective manner.
While ADR Chambers’ neutrals have always been able to offer our services virtually, historically we have offered the majority of our services in-person. During the pandemic, all of the services are being provided virtually.
I practiced law for 7 years prior to obtaining a Master of Laws in Alternative Dispute Resolution and also the designation of Chartered Mediator. I now dedicate my practice to mediating, teaching and coaching. I teach negotiation, conflict resolution, and how to have difficult conversations. The focus of my mediation work is to help people deal with issues and resolve conflicts in the workplace including disputes between members of the senior management team or other colleagues, between managers and employees, and within teams. I help my clients to have difficult conversations, resolve conflicts, and improve workplace functioning, communication, and morale.
What are the various types of alternative dispute resolution and why would one format be used over another?
Any mechanism for resolving conflicts other than going to court could be called a type of alternative dispute resolution. Therefore, negotiation, mediation, arbitration, med/arb, using ombuds, and early neutral evaluation are all examples of types of alternative dispute resolution.
Parties typically choose to use a form of alternative dispute resolution because it gives them greater control over the process, it will often be quicker and less expensive than going to court and they have the option of keeping the process private. When choosing which type of alternative dispute resolution to use, it can be useful to place the different processes on a spectrum.
As you examine the processes on the spectrum from left to right, you will typically find the following:
- there is increasing involvement of a third party in the process
- the processes become increasingly formal
- the potential for damage to the relationship between the disputants increases
- the processes become more expensive
- the processes require increasing amounts of time from the participants
- a longer period of time will elapse between the beginning of the conflict and its resolution
- there is an increasing focus on the disputants’ rights as opposed to their interests.
To determine which process would be most appropriate to resolve a particular dispute, the parties would want to consider, among other things :
- do the parties feel capable (perhaps with the support of their counsel) to resolve the matter directly or do they feel they are at a final impasse?
- how important is it to maintain an ongoing relationship after the dispute?
- how important is it for the parties to be involved in determining the outcome of the dispute (which might suggest negotiation or mediation would be most appropriate) versus getting a final binding decision (which might suggest binding arbitration)?
- how much time and money are the parties prepared to invest in the process of resolving the dispute?
What types of cases are typically submitted to alternative dispute resolution and why?
Virtually any type of case can be referred to mediation or arbitration. ADR Chambers neutrals have dealt with all manner of cases including, but not limited to disputes relating to:
- bankruptcy or insolvency
- class actions
- allegations of harassment in the workplace
- interpersonal conflicts in the workplace
- estate issues
- wrongful dismissal
- personal injury
- product liability
- professional liability
- medical malpractice
- interpretation of commercial insurance policies
- intellectual property
- family disputes
- environmental issues
- libel and slander
- public policy
- commercial leases
- land-use planning
- and many more…
Parties often select alternative dispute resolution because they hope to resolve their conflict in a way that will be more effective, less expensive, and less time-consuming than going to court. Also, alternative dispute resolution frequently allows parties to maintain confidentiality around the existence of the dispute, the content of the dispute, and the ultimate resolution of the dispute. Unlike with litigation, parties to mediation and arbitration are frequently in the position to choose the expert who will act as their mediator or arbitrator. They therefore can select a neutral third party who has the experience, expertise, and approach that they wish for their specific dispute.
What happens when someone agrees to alternative dispute resolution? What is the process and what happens? Is it binding or nonbinding? What are the benefits of agreeing to participate in ADR?
What happens when someone agrees to alternative dispute resolution will depend upon a number of factors, including the type of alternative dispute resolution and whether the process is voluntary or mandatory.
In some jurisdictions and in some contexts, parties may be required to participate in a mandatory mediation before going to trial or they may be required to submit their dispute to arbitration. In those cases, the nature of the process (e.g. mediation or arbitration) is typically stipulated in a contract or in legislation and the contract or legislation may also stipulate how the process will be conducted.
For example, some parties may be required to submit their claim to a single arbitrator who is selected from a pre-approved roster of arbitrators and who then must follow a predetermined process. In other cases, parties may be required to participate in a mediation of a predetermined length in front of a mediator who has been appointed to their case. In these situations, there may only be limited options available to the parties.
In cases when participating in mediation or arbitration is voluntary then the parties typically have much more control over the selection of the third-party neutral and the process.
Often, the first decision the parties will need to make is whether they will be using mediation or arbitration. The choice will largely depend upon the level of control they wish to maintain over the process and the outcome.
In mediation, the mediator tries to facilitate a discussion between the parties designed to help the parties to explore settlement options. The mediator has no decision-making authority and cannot impose a solution upon the parties. While the mediator is not in a position to impose a solution upon the parties, if the parties enter into an agreement, they do have the option of making the agreement binding in a variety of ways. For example, the parties may enter into a binding contract or, in some cases, they may present their settlement to a court and ask that the court issue an order on the same terms. Therefore, while the mediator cannot impose a solution, the parties are able to enter into a binding agreement coming out of a mediation process.
If the parties are proceeding by way of arbitration, they will have to decide whether to proceed with binding or non-binding arbitration. When choosing arbitration, parties typically choose binding arbitration because they are hoping to obtain a final result for their dispute. In a binding arbitration, the arbitrator is in a position to make a decision that will be binding upon the parties. Typically, an arbitral decision is subject to only limited review such as judicial review of the process or limited rights of appeal. In some cases, parties choose to forgo their rights to appeal as part of the arbitration process.
In addition to choosing whether the arbitration will be binding or non-binding, the parties will also typically have significant control over the design of the arbitration process. For example, they may agree that they wish the entire process to be conducted by way of documentary exchange. They may agree to have opening statements but limit the time allowed for each party’s opening statements. They can agree to allow certain evidence to be admitted on consent. They can agree to restrict the number of witnesses each party can call or agree to have all direct evidence introduced by affidavit to save time and costs. Broadly speaking, while the parties cannot fetter the discretion of the arbitrator, as long as the parties have agreed on the process they would like to follow, they can ask the arbitrator to adopt that process and the arbitrator will frequently agree.
Lastly, parties to a voluntary arbitration will have the ability to select the arbitrator they wish to retain. This allows them to select an arbitrator who has the expertise and experience they are looking for and one who is willing to proceed in a timely manner and adopt the process they have agreed upon.
In situations where the parties cannot agree on how the arbitration process should be structured, the arbitrator would normally have the jurisdiction to set the process for the parties.
The benefits of agreeing to participate in mediation vary depending upon the situation but the benefits typically include:
- parties can select a mediator with the experience, approach, and subject matter expertise that they think would be helpful in their case;
- there is a greater likelihood of maintaining or enhancing the relationship between the parties;
- mediation is generally less stressful than going to court;
- if they reach an agreement it is generally quicker than going to court;
- mediation is less expensive and time-consuming than going to court;
- they can achieve an agreement that meets their real interests;
- the parties maintain absolute control over any agreement and cannot have a decision imposed upon them;
- the decision will not set a precedent (which some parties wish to avoid); and
- if they do reach an agreement, they can make it a binding agreement if they wish.
The benefits of agreeing to participate in an arbitration also vary depending upon the context but the benefits can include:
- the parties may be able to keep the fact of the dispute, the materials filed for the arbitration, and the decision of the arbitrator confidential;
- parties can generally get a date for arbitration far more quickly (if that is what they want) than obtaining court dates;
- the parties can select an arbitrator with the specific experience and subject matter expertise they require based on the content of the dispute;
- arbitration is generally quicker, less time-consuming, and less expensive than going to court;
- parties have greater control over the design of the process than they would if they went to court; and
- arbitration can be binding and the parties can agree, if they wish, to preclude the right to an appeal to ensure that the decision is final.
What are some of the best ways that a person can prepare for ADR when presenting their case and what other suggestions would you have for somebody who is considering utilizing a mediator or arbitrator?
Many of the best ways to prepare for arbitration are the same as the best ways for preparing for court while preparing for mediation has some similarities and many differences from preparing for court or arbitration.
Preparing for mediation can be similar to preparing for court in that, in both cases, parties or their advocates should spend time thinking about their opening statement. That said, the purpose, and therefore the design, of the opening statement will be very different.
In litigation, each party is preparing their opening statement to persuade the judge (or jury) to find in their favor based on a combination of facts and law. In a mediation, a party should prepare his or her opening statement with a very different goal. In a mediation, the party preparing his or her opening statement should do so with the goal of persuading the other party that settling the dispute is in the interests of that party. You might convince a judge in court that you are “right” and the other side is “wrong” but you will rarely convince the other party in a mediation of that view.
Therefore, the wise party (or their attorney) avoids trying to convince the other side that the wise party is right but, instead, tries to focus on how a settlement between the parties best meets the interests of the other side. It may meet their interests because it is less risky, less expensive, and/or less time-consuming than proceeding to litigation or leaving the matter unresolved.
A settlement may also meet the interests of the other side because it may result in a creative solution that is better than any result a court could impose. This is not to suggest that parties to a mediation might not wish to refer to what they perceive to be the strengths of their legal case and the weaknesses of the other side’s case. It is that, in referring to those perceived strengths and weaknesses, the party does not try to require the other side to agree but merely identifies the potential risks as against the certain benefits which could be obtained through settlement.
To prepare for a mediation, parties and their attorneys should also think about:
- what is going to happen if we do not reach an agreement?
- what would need to be included in a settlement agreement for the party to be willing to settle the case and forgo the opportunity to take the matter to court (or have the dispute resolved in some alternative form)
- what information might they gain through the mediation that would help them to assess better the benefits and drawbacks of their case?
- how important is the relationship between the parties going forward?
- what does the party think is important to the other side? What are their interests?
- what ideas do they have that would meet the interests of the other side (at least acceptably) and meet their own interests as fully as possible?
- how could they put forward their perspective in the way that they think will be most persuasive to the other side (given the other side’s perspective of the situation)?
- what opportunities are available to them in mediation that might not be available to them in a court process (for example, giving or receiving an apology)?
As noted above, many of the best ways to prepare for arbitration are the same as the best ways to prepare for court. For example, as with litigation, it is important when preparing for arbitration to know your case, prepare your opening, prepare your witnesses (if any), plan direct examination and cross, prepare your closing, etc. Where preparing for arbitration can differ from preparing for litigation is that the parties can agree to design the process to best meet their needs. Therefore, part of the preparation for arbitration would be to consider what process would be best for advancing your case in an effective way while eliminating unnecessary, time-consuming, and expensive steps.
The bottom line is that choosing a form of alternative dispute resolution allows the parties to choose a method for resolving their dispute that offers the greatest likelihood of achieving the results that are most important to them. If they are most concerned about maintaining or improving the relationship while resolving the dispute, they may select mediation. If they are most concerned about having a quick and binding result, they may choose an expedited arbitration process. If their greatest concern is keeping the matter out of court to maintain privacy, either option can meet that need. Once they have selected the process, they can prepare in the way that would be most effective for that process.
Pro Tip: Personal injury cases that involve significant injuries sometimes require the assistance of a dispute resolution service who can help in a variety of accident cases. Should you have any questions about your Connecticut accident case, please contact us.