In recent years, clients and counsel seek prompt, cost-effective, less adversarial methods for resolving disputes.
Of late, nonjudicial methods of dispute resolution have been growing in number. Increasingly, lawyers are serving as mediators and arbitrators in court-annexed and private proceedings, as third-party neutrals for early case evaluations, and in other neutral advisory or decision-making roles. Robertson, Johnson, Miller & Williamson works to understand the business objectives of our clients and, in partnership with them, design realistic litigation strategies that accomplish their goals. An informed and creative approach to litigation adds value beyond the simple defense or prosecution of claims. We pursue conventional trial practices when a trial is necessary or strategically advantageous. However, we will turn to alternative dispute resolution (ADR) when it best serves the clients’ goals. We believe that successful litigation strategies result from strong working relationships between our trial attorneys and clients. We assist clients in selecting an appropriate ADR mechanism and drafting the ADR contract provisions, and we represent clients in the ADR process.
The benefits of alternative dispute resolution.
They derive from its versatility and independence from court bureaucracy and reduce legal expenses. The general concept of ADR has gained wide support among legislatures, courts and legal practitioners. Successful ADR programs ensure neutrality, provide a forum for mutual education and encourage the parties themselves, not just the lawyers, to join in the negotiating process. In some instances, ADR can afford quicker resolutions and lower costs than conventional court proceedings.
ADR works for clients to maintain business relationships with adversaries
Mediation, as opposed to adversarial adjudication, is especially helpful when there are on-going business ties between potential litigants. In addition, mediation has the advantage of keeping witnesses off the witness stand, information out of the public record and the terms of a settlement confidential.
How ADR techniques are used today.
You will find these techniques in settlement negotiations for all types of complex cases, such as mining disputes, business contract disputes and commercial real estate disputes, to name a few. The various techniques range from traditional mediation to partnering, which is a collaborative contracting process focusing on dispute prevention that can be molded to fit the particular needs and resources of the parties.
In place of courtroom judges, ADR proceedings typically use neutral professionals.
These professionals are used to guide the parties’ own negotiations, render a decision or advise the parties. Many ADR professionals are former judges, attorneys or industry experts. Types of proceedings include, among others:
The parties present their case to a single arbitrator (or a panel of arbitrators) that renders a decision that is usually binding and typically not appealable to a court.
The award is guaranteed to be within a specific range. If the arbitrator’s award is higher or lower than the agreed range, the difference is disregarded.
Nonbinding mediation before an impartial mediator who is knowledgeable about the subject matter of the dispute is the most common ADR procedure used in recent years. A mediator acts as a go-between in a series of individual and joint settlement meetings. The decision is nonbinding and parties can walk away at any time.
Mini-trials and Simulated Jury Trials.
Parties or their attorneys make their cases before a neutral or a simulated jury. No witnesses testify and the rules of evidence are relaxed. An advisory opinion from the “jury” serves as a basis for negotiation.
An arbitrator’s decision is used as a basis for further negotiation.
Other alternatives include settlement conferences before retired judges or professional mediators.