Alternative Dispute Resolution (ADR) can take various forms such as Mediation, Arbitration, or Collaborative practice. Each of these different methods is designed to keep your private matters out of the courtroom; Resolving your case outside of the courtroom allows for more creative and flexible solutions that better meet the unique needs of your family. The idea behind utilizing ADR methods is to provide an alternative to traditional methods of solving a legal dispute, which typically includes filing a lawsuit and going to court. ADR alternatives were designed to be a streamlined and cost-conscious option to deal with legal issues. The most appropriate method to resolving any given dispute can only be chosen after a careful assessment of the details and circumstances of the case; this includes the interests of each party, the nature of the dispute itself, and any statutory or policy restrictions governing the use of a particular resolution process.
Defining mediation is simple; it is a conflict resolution method designed to help all participants involved and can be especially beneficial for people who believe their differences are so vast that they will never be able to reach an agreement. It’s also a great option for those who agree on some issues but need help coming to a resolution on that “last matter” that continues to delay the process. Mediators do not render decisions like a judge or arbitrator;
Both participants will meet with a neutral mediator and all work together to reach the best possible agreement to their dispute in a way that is both respectful and amicable. The best mediation agreement is one that meets the most important interests of all participants. Mediation is a voluntary process, meaning that it requires an agreement by both parties to proceed. However, in some court cases (such as those involving issues surrounding custody and parenting time) mediation is mandatory prior to proceeding through traditional litigation channels.
Arbitration is a more formal process than mediation. Generally, the arbitration process involves many of the same components as a courtroom trial; evidence is presented, arguments are made, witnesses are called and questioned by the parties, and so forth. However, many of these facets are simplified or limited to make the process quicker than it would be if done as part of a traditional courtroom trial. The process is governed by the rules of arbitration which control the presentation of evidence and information to a neutral arbitrator. Within a specific period of time following the required hearings, the arbitrator will deliver a ruling to the involved parties and, depending on the type of arbitration, this ruling may be final or have options to appeal.
The distinction between arbitrators and judges is an important one; when someone files a case in court, neither they nor the defending party get any input into who the judge will be. Judges are typically assigned to a case randomly. With arbitration however, the parties often have some input into who their arbitrator ends up being.
Depending on the nature of the dispute, arbitration can be a voluntary process (where both parties agree to submit their dispute to arbitration) or a mandatory adjunct to the traditional litigation process.
Collaborative practice, also referred to as collaborative law, is a legal process that is primarily used in the family law context; it enables couples who have decided to separate or divorce to work with their lawyers and, on occasion, other family professionals to avoid the uncertain outcome of court litigation and to achieve a settlement that best meets the specific needs of both parties and their children. This is a voluntary process that is initiated when the couple signs a contract (or “participation agreement”) binding each other to the process and disqualifying their respective lawyer’s right to represent either one in any future family-related litigation; Thereby allowing both parties to receive a fair settlement.
The Collaborative process can be used to facilitate a broad range of family issues, including parental disputes and the drawing up of pre and post-marital contracts. Although the traditional method of drawing up pre-marital contracts is often considered oppositional, many couples actually prefer to begin their married life with clearly articulated documents drawn up consensually and mutually.
Collaborative practice is a slightly less formal process than formal litigation and therefore, presents the opportunity for cost efficiencies. In collaborative practice, the involved parties will often assign important tasks to specialists or professionals without duplication so that cost savings may be realized.
The most appropriate method to resolving any given dispute can only be chosen after a careful assessment of the facts and circumstances of thcase. The lawyers at McKean Smith have a rich depth of experience in guiding clients just like you through this assessment process and will successfully represent your interests through whichever ADR process is best suited to your dispute.