Alternative Dispute Resolution Overview

Alternative Dispute Resolution
What is Alternative Dispute Resolution?
What are the advantages of Alternative Dispute Resolution?
When is Alternative Dispute Resolution appropriate?
What are some frequently used alternative dispute resolution techniques?

Mediation
What is mediation?
Is mediation binding?
Will the mediator determine what is fair or appropriate in our case?
What preparation is needed for the first meeting?
What if the mediators don’t believe me?
When do we meet for mediation and for how long?
What exactly happens in mediation?
What if I’d rather not meet in the same room with the other party?
What about bringing other parties to the mediation?
Will the mediator also give me legal advice or act as my attorney?
Will I get a chance to explain the situation?
What if I feel things aren’t going well?
What if the other party lies about everything in mediation- won’t the mediation outcome be slanted in his or her favor?
Can mediation work if the other party is locked into a particular position and won’t be reasonable?
What steps can I take to maximize my chance of getting an agreement?
Why should I choose mediation?
How do I get started in mediation?

Confidentiality
Is this a confidential process?
Are there any exceptions to confidentiality?

Alternative Dispute Resolution

What is Alternative Dispute Resolution?
Alternative Dispute Resolution (ADR) refers to a variety of dispute resolution processes designed to assist parties in working through issues and/or resolving differences. These processes involve a third party neutral and are typically voluntary. The neutral can play a variety of roles, including facilitating discussions, providing parties with a “reality check” on the merits and value of their claims, assisting with creative problem solving, and writing agreements that reflect the needs of the parties. The most familiar ADR processes are mediation and arbitration.
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What are the advantages of using Alternative Dispute Resolution?
ADR has become popular in recent years because it is more efficient, and more cost effective than the traditional, formal systems of redress. The use of ADR also tends to mend or improve the overall relationship between the parties because the focus is largely on the disputants’ needs, while litigation focuses on positions. In some forms of ADR such as mediation, the parties craft the agreement or solution themselves and are generally more committed to the agreement than when a judge or hearing officer imposes a solution. ADR also can allow the parties to develop a more flexible or creative solution than is generally possible in court or formal hearings and appeals. By attempting to resolve a dispute through ADR, you do not give up your legal rights to pursue more traditional approaches.

When is ADR appropriate?
One or more ADR processes may be appropriate for many types of disputes. For example, ADR can be used in resolving disputes involving miscommunication, disagreements over facts, alleged discrimination, assessment of penalties where some discretion is involved, personality conflicts, and collective bargaining.

To decide whether ADR is appropriate for your dispute, it may help to ask yourself some of the following questions:
     Does the relationship have to continue even though it is tense?
     Are there communication difficulties and could a skilled neutral party help?
     Would third-party intervention change the dynamics of the situation?
     Are you willing to meet to resolve your differences?
     Is confidentiality important?
     Do you want to retain control over the outcome?
     Is time important?

If you answered “yes” to most of the questions, then your situation is probably suitable for ADR.

What are some frequently used ADR techniques?
The range of ADR techniques include but are not limited to:
Mediation - a process in which a trained neutral third party assists in resolving a dispute, or at least narrowing and clarifying issues, in a manner that is acceptable to both sides.
Facilitation – involves a neutral third party providing guidance to design and manage a group communication process to resolve a problem or address issues.
Conflict Coaching – a neutral helps you develop and apply effective communication and problem solving skills to handle conflict more constructively on your own.
Interest based problem solving – helps parties move away from traditional negotiation and focuses parties on underlying interests to develop creative, mutually beneficial solutions.
Fact finding – a neutral fact finder gathers information to create a report of the facts surrounding a dispute.
Partnering – workshops provide a facilitated open environment for parties to discuss expectations and methods for managing conflict and preventing disputes.
Policy dialogue – a process designed to facilitate voluntary, interactive exchanges of views and information among interested groups and individuals working towards consensus solutions to policy issues. It is a flexible tool to enable all parties to participate in a non-adversarial setting to define and resolve issues.

Mediation

What is mediation?
Mediation is a process in which a trained neutral third party assists in resolving a dispute, or at least narrowing and clarifying issues, in a manner that is acceptable to both sides. The mediator helps to move parties from positions to focusing on their underlying interests.

For example, In the “story of the orange,” a brother and a sister both come home from school with an assignment to make a recipe that requires one whole orange. There is only one orange in the refrigerator and a dispute about who will get the orange develops. This dispute could be resolved in several ways. They could negotiate over the orange and perhaps decide to cut it in half with neither getting enough for his or her recipe. They could flip a coin or one could “buy out” the other one with money or they could ask their mom to decide. The mom could listen to their arguments and determine who needed to the orange the most, or whose “turn” it is to get the last orange, etc. In either case, whether decided by negotiation or by a judge, the discussion will center around the relative merits of each child’s claim on the orange and how those merits will be weighted to reach a decision.

Instead, the children call on a mediator. The mediator looks at the needs, interests, values, and goals of the children. In doing so, the mediator helps the children discover that the boy needs the zest from the rind of the orange to color and flavor the icing of a cake, while the girl needs the sections of the orange to add to a jell-o mold. In fact, they can both use the “whole” orange because both their needs can be met by different parts of the orange.




Is mediation binding?

Mediation is the best of both worlds – it’s both binding and non-binding. It’s non-binding in the sense that you will not be bound to any outcome just by agreeing to mediate, signing our “agreement to mediate” form, or by entering into the mediation process. If you and the other party cannot come to a mutually acceptable agreement, then you are placed right back into the position you were in before you started mediation. On the other hand, mediation is binding if you reach and sign an agreement.

Will the mediator determine what is fair or appropriate in our case?
No. Generally, mediators are facilitators – facilitators of process, communication, and negotiation. Mediators focus the parties on an examination of their individual and separate needs, interests, values, and goals and what outcomes would most closely meet those needs. Learning in detail about the needs, interests, values and goals of each other will lead each of you to be able to craft proposals that you both feel are fair.

What preparation is needed for the mediation?

Think about what your real needs are and what you want to get out of the mediation. Think about what could happen if you don’t reach an agreement. What could be the best possible outcome if you didn’t reach an agreement? What could be the worst? What is the likelihood of these outcomes occurring if you do not resolve the case during mediation? What might be the other party’s needs or concerns? Are there any options that you can think of that might be acceptable to everyone? Think about who needs to attend the mediation. Is the person with knowledge of the situation the same individual who has authority to settle? Finally, if you have an attorney, decide whether your attorney plans on attending the mediation session with you. If so, discuss what your respective roles will be. If not, be sure you have a clear understanding of what you can discuss at the mediation table so you are able to negotiate effectively.

What if the mediators don’t believe me?
It doesn’t matter. The mediators aren’t conducting an investigation. The mediators know that, however you phrase what you say, you’re really telling them what’s most important to you. They’ll be listening carefully for things like what values motivate you; what needs and interests are upper most in your mind; what goals you hope to achieve; what your concerns are, etc.

When do we meet for mediation and for how long?
This all depends upon the availability of the parties. Typically, you will schedule a full or half day of mediation. More sessions will be scheduled if necessary. Often a break in the mediation process is essential to developing a final agreement. Such a break between sessions allows the parties to gather additional information that was found essential during the mediation process, to reflect on options themselves, or thoroughly discuss the pros and cons of settlements with their attorneys or others.

What exactly happens in mediation?
The mediation process begins with an introduction in which the mediator describes the mediation process. Both parties to the dispute provide information on the matter prompting the dispute and describe the situation from their personal perspectives.

After each party has had the opportunity to speak, the mediator may ask questions to clarify or elaborate on the matters discussed. At some point, the mediator might stop the joint session and continue with a series of private meetings (caucuses) where the mediator explores various options for resolving the dispute.

During a caucus, each party has the chance to suggest possible solutions to the conflict. These options are explored and refined until a mutually acceptable agreement is reached, or a decision is made by the parties to discontinue the session.

What if I’d rather not meet in the same room with the other party?
Generally, mediation works best when both parties can be in the mediation room together – especially during the initial stages of the mediation. This give each an opportunity to hear what the other is saying, what they feel are their important needs, interests, values and goals, and what they need to say yes to an agreement. Agreements work best when the parties have taken advantage of face to face meetings to work out the details and judge the other party’s position and commitment for themselves.

What about bringing other people to the mediation?
Bringing other people to the mediation is fine as long as both parties agree. Typically, if parties would like to bring non-parties to the mediation, they should inform the person scheduling the mediation prior to the mediation so that both sides have an opportunity to discuss the issue and define the role of the non-party. This person may be a friend, relative, union representative, attorney, or anyone else you choose. In some situations, it is helpful to have other people present who may have information about the situation or authority to make decisions.

Will the mediator also give me legal advice or act as my attorney?
Although mediators may be attorneys, in the mediation sessions, they will not give legal advice or act as counselors. You always have the right, however, to consult with an attorney.

Will I get a chance to explain the situation?
Yes. All participants really need to hear everything you have to say in order for the process to work. Both parties will have as much time as they need to fully explain the situation and what they are trying to achieve.

What if I feel things aren’t going well?
Mediation is a voluntary process; no one can force you to reach an agreement in mediation. Ultimately you can terminate the mediation process if you feel that it is not serving your interests, that you are not being respected, or that the discussions are not constructive or likely to result in a good agreement for you. However, before terminating your participation in mediation, we encourage you to treat that as another problem that needs to be solved. Discuss your concerns with the mediator. Explain why you’re feeling that the process isn’t working well for you. The mediator will work with you and the other party – perhaps in separate sessions – to find a way to continue the process productively.

What if the other party lies about everything in mediation – won’t the mediation outcome be slanted in his or her favor?
No. Probably the worst that will happen is that the other party will derail the process and there will be no agreement. Usually people realize rather quickly that
1. lying just antagonizes the other party and the other party is needed if there is to be an agreement;
2. the mediator is really interested in drawing out your concerns about meeting your needs, interest, values, and goals – things not very productive to lie about, and
3. the mediator doesn’t make any decisions about the outcome.

Can mediation work if the other party is locked into a particular position and won’t be reasonable?
Yes. Mediation can still work, even when one of the parties begins the process locked into a particular position. That’s because, in mediation, the mediator will ask you to look closely at your needs, interests, values, and goals rather than your positions. The mediator will assist you to look behind your positions to find these needs and interests and to discuss options for meeting them that parties might be able to agree to.

What steps can I take to maximize my chance of getting an agreement?
There are no guarantees that you will reach an agreement, however, mediation works best when you
Participate with good will and optimism.
Listen with patience.
Reassess your own assumptions and understanding.
Recognize and validate the other person’s needs and interests.
Maximize information sharing.
Trust and follow the process.

Why should I choose mediation?
Mediation saves time.
Mediation saves money.
Mediation enhances relationship.
Mediation gives you an opportunity to be heard.
Mediation gives you an opportunity to develop new ways of dealing with a dispute.
Mediation gives you an opportunity to create mutually beneficial solutions.
Mediation is voluntary and you can stop it at any time.
Mediation does not replace your legal rights to pursue more traditional approaches.

How do I get started in Mediation?
If you decide to use mediation or need more information, call (202) 366-8067. The CADR staff will discuss the mediation process and answer any questions you may have.

Confidentiality

Is this a confidential process?
Mediation is a confidential process – by law and by agreement. We will ask you to sign an Agreement to Mediate that includes provisions governing confidentiality. Confidentiality means that neither you nor the mediators can be compelled to testify in a court or administrative proceeding about what was said or done in the mediation session, to the mediators separately, or to the staff of our mediation program. It also means that the mediators will not discuss the case outside of the mediation context – with friends, neighbors, strangers, attorneys, therapists, court staff, etc. without your permission. However, the mediators may discuss these issues within our mediation program as needed to manage the case, get advice on how to proceed, etc.

Are there any exceptions to confidentiality?
The mediator agrees not to disclose any communication, oral or written, disclosed by a party to the mediator in confidence, unless:
a. all parties agree in writing to disclose the information;
b. the information has already been made public;
c. the disclosure of the information is required by law; or
d. a court determines that disclosure is necessary to:
     i. prevent a manifest injustice;
     ii. help establish a violation of law; or
     iii. prevent serious harm to public health or safety.