With the vast majority of civil cases settling rather than going to trial, California attorneys need to be familiar with the various alternative dispute resolution (ADR) processes. Once you understand the big picture of the ADR options available, you need to hone in on the right one for your case.
When choosing a form of ADR, always consider the nature of the dispute and what the parties truly need to move toward its resolution.
For example, if one party needs to say something to the other, or hear the other say something to him or her, a process with facilitative elements may be essential.
But if the parties have somewhat reasonable communication with one another, but nonetheless need a respected neutral person to assess the strengths and weaknesses of their arguments and suggest a basis for compromise, a process near the middle of the ADR spectrum, such as early neutral evaluation may make the most sense.
To help you evaluate whether a facilitative (such as mediation) or adjudicative (such as arbitration) process is the right one in your case, here are some factors to consider:
Factors favoring a facilitative process:
- historic or ongoing relationship between the parties,
- parties’ need or desire for confidentiality,
- potential for outcomes not attainable through adjudication,
- desire for a prompt, inexpensive process, and
- parties need to express themselves directly.
Factors favoring an adjudicative process:
- need for a neutral person to evaluate credibility,
- existence of disputed issues of law,
- presence of public policy concerns (e.g., a defective product),
- need for a formal judgment (e.g., in insurance coverage disputes), and
- involvement of one or more parties who are unable or unwilling to engage in negotiation or settlement discussions in good faith.
For more on the different types of ADR and their relative advantages/disadvantages, turn to CEB’s California Basic Practice Handbook, chapter 2 — a must-have book for anyone new to law practice in California. Also check out the ADR information in CEB’s California Civil Procedure Before Trial, chapter 45.
Related CEB blog posts:
- Come Together, Right Now, and Mediate!
- The Blush Is off the Arbitration Rose
- Mediation May Be the Right Tool for Wage and Hour Suits
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