ADR Overview* and Services

 

 

What is ADR?

 

       “ADR” stands for Alternative Dispute Resolution, which is generally understood to be an alternative to traditional court or administrative litigation.  There are many forms of ADR; some of which are discussed below and others are newly emerging or hybrid forms that innovative parties, counsel, and neutrals have designed for use in specific disputes.

  

History and uses of ADR

 

       While many of the procedural aspects of current ADR work are the result of recent developments, ADR itself is extremely old. In fact, commercial arbitration agreements took place between ancient Phoenician and Greek traders, and within desert caravans in the era of Marco Polo.1  Civil arbitrations can also be traced back to ancient times. In the sixth century B.C., Peisistratus of Athens appointed arbitrators who traveled through the countryside settling disputes.2

 

       In the United States, ADR pre-dates both the Declaration of Independence and the Constitution. George Washington included an arbitration clause in his will in 1799 and Abraham Lincoln served as an arbitrator in at least one real estate dispute.  The Chambers of commerce created arbitral tribunals in New York in 1768, in New Haven in 1794, and in Philadelphia in 1801. These early panels were used primarily to settle disputes in the clothing, printing, and merchant seaman industries. Other societal conventions, such as duels, were used as a means for settling disputes.3

 

       Arbitration received the full endorsement of the Supreme Court in 1854, when the court specifically upheld the right of an arbitrator to issue binding judgments.4   Writing for the court, Justice Grier stated that, "Arbitrators are judges chosen by the parties to decide the matters submitted to them, finally and without appeal. As a mode of settling disputes, it should receive every encouragement from courts of equity." 5 This right to privately settle claims outside of the courtroom was continually reaffirmed by the Court in the six decades before formal ADR organizations were created in America.6

           

       ADR became officially institutionalized in the United States in 1922, when business leaders created a new educational organization entitled The Arbitration Society of America. The Society was the motivating force behind the passing of the Federal Arbitration Act ("FAA") in 1925, which enforced arbitration clauses in interstate contracts, and created the basic foundation upon which modern business arbitration agreements are built today. A copy of the FAA is included in the reference section of this website.  

 

       The late 1930s brought an increased number of labor arbitrations, and following World War II were the international arbitrations, insurance disputes, and construction cases. Gradually, mediations were added to the roster, and as court dockets became increasingly backlogged, more proponents of "traditional litigation" turned to ADR for settling disputes.

 

            

ADR processes & service fees

 

       Occasionally discounted for financial need, Ms. Roth's rates are $450 per hour for preparation and session time, plus actual travel expenses outside Metro Boston.  Travel time outside of Metro Boston is billed at 50% of the hourly rate. The cancellation policy is 50% of hourly rate for the time scheduled if cancellation is less than: one business week before the session for mediation, and four business weeks before the session for arbitration.

 

Mediation

           

       Mediation is a form of assisted settlement negotiation and the fastest growing ADR option.  In mediation, the parties enlist the help of a neutral third party to assist them in resolving their dispute confidentially and in a way that satisfies both sides. 

 

       The mediation session typically starts with a meeting with all parties and the mediator (the “joint session”), during which each side briefly summarizes its position and often suggests a proposal for resolution.

 

       After the joint session, the parties separate into private meetings with the mediator – one after the other – for the duration of the process.  These "private caucuses" tend to consume most of the session time, and involve the parties’ most intensive negotiation efforts.

 

        During the private caucuses, the mediator will share information only as permitted by the disclosing party.  This format encourages the parties to explore candidly their case weaknesses, the strengths of the other side’s position, and their own interests as they advance toward resolution.    

 

        Adequate preparation is essential, and counsel should consider a number of issues in the practice of mediation:

 

-  Who should attend the mediation session?

-  Do I want the mediator to give his or her opinion to my client?

How long should the mediation last?

What documents or evidence should we submit to the mediator before the session?

-  Should we set narrow goals to settle the issues in dispute or set broader goals to effect genuine peace and resolution?

Should we decide on a “bottom line” or a range of options prior to the mediation session?

    What are we willing to share with the other side and what must remain confidential?

-   Once we agree to mediate, are we obligated to settle?

       Bette Roth has handled at least 800 cases as a mediator.  In private mediations, of which she has settled more than 95%, she works with the parties and their counsel through these preliminary issues before the start of the scheduled mediation session. 

       For the types of cases Ms. Roth has handled, see the "Substantive Areas" listed under the "About Bette Roth" bar. 

Arbitration

           

       Traditional contractual arbitration has several characteristics that separate it from other forms of alternative dispute resolution. A typical arbitration case involves very limited discovery, a hearing before the arbitrator(s) and a binding award. In states, it is supported by statutes, and federal claims fall under the Federal Arbitration Act, which provide for the enforcement of future agreements to arbitrate, and stipulate that a trial court can enforce an award rendered by an arbitrator. 

 

       Bette Roth has been selected to serve as the arbitrator chairperson or the sole arbitrator in approximately 100 arbitrations, and has presided over dozens of full arbitration hearings.   

 

         For the types of cases Ms. Roth has handled, see the "Substantive Areas" listed under the "About Bette Roth" bar.  

 

Conciliation

           

       Conciliation is generally considered to be an abbreviated form of mediation and is typically agency or court- related.  In conciliation, the conciliator typically meets with the parties and attempts briefly to facilitate a settlement.  If one is not forthcoming, the conciliator will then help the parties proceed with their case, either in narrowing the issues for trial or in exploring more substantial dispute resolution processes.  Bette Roth has conciliated many numerous disputes both privately, and through agency and court-referrals. 

 

Case evaluation

 

        In a case evaluation, the parties will present their case to the case evaluator.  The presentation is typically both in writing and in-person during the case evaluation session.  After meeting with the parties and reviewing the information, the case evaluator typically produces a written reasoned opinion. Case evaluations can be requested at other times, such as during a mediation when the parties are near or have reached an impasse. 

    

  In connection with mediation, Bette Roth has been asked to perform numerous case evaluations involving a variety of cases. 

 

Mediation/arbitration hybrids

 

       The best-known hybrid form of mediation and arbitration is the “med-arb” process, designed to bring the benefits of both mediation and arbitration together in one process.  As originally conceived, the parties use the same neutral as both the mediator and the arbitrator.  However, a recognized risk is if the mediation fails, the same neutral in continuing as the arbitrator will be considering certain information or evidence obtained ex-parte.  Thus, parties need to consider this issue in defining the scope and authority of the neutral.

 

       A related process, "med-then-arb," involves the use of separate individuals — one as a mediator and, if the case does not settle, the other as an arbitrator. 

 

A third variation is the “arb-med” process, in which the arbitrator takes in evidence during an arbitration, and before distributing the final award to the parties, “changes hats” and mediates the case for the parties.  If the parties are unable to settle the case during the mediation, the neutral then produces the arbitration award. 

 

       Bette Roth has conducted one med-arb process that settled during the initial mediation phase. 

 

Mini-trials 

           

       Mini-trials, like mediations, attempt to bring the focus of the competing clients to bear on the dispute in a decisive way. The goal is to involve senior corporate executives in a "business-like" resolution of the dispute. In a mini-trial the lawyers generally make abbreviated presentations of the dispute to a panel of decision-makers. Typically, the panel is composed of senior executives of the two disputing organizations who do not have direct supervisory responsibility for the project that gave rise to the dispute. The panel is often aided by a neutral hearing officer, convener, or facilitator.

 

       The role of this neutral facilitator can vary. Occasionally, the role of the neutral is limited to the procedural conduct of the hearing, ensuring that the presentations by counsel are orderly. More often, the neutral plays the role of a substantive mediator in the executive sessions conducted by the panel following presentations by counsel.

 

       Mini-trials are voluntary and non-binding, and depend for their success upon the degree of authority wielded by the two executive panelists within their own organizations

 

Summary jury trials

 

       A summary jury trial, according to the Massachusetts Court system, is a non-binding determination administered by the court in which (a) the parties’ attorneys present a summary of the evidence and arguments they expect to offer at trail to a six-person jury chosen for the court’s jury pool, (b) the jury deliberates and returns a non-binding decision on the issues in dispute, (c) the attorneys may discuss with the jurors their reaction to the evidence and reasons for the verdict, and (d) the presiding neutral may be available to conduct a mediation with the parties.

  

Judicial arbitration

           

       Court-annexed or judicial arbitration is another alternative to trial. Because it is mandated by statute or court rule, scholars continue to argue whether or not it is a true form of ADR. Nevertheless, it is mentioned because most practitioners perceive it to be an alternative to traditional litigation. It differs from traditional private contractual arbitration in the following ways:

 

  • The judicial arbitrator's award is binding only if the parties make it so. They otherwise enjoy the right to a trial de novo.
  • The parties to a judicial arbitration often come together by accident, while parties to private arbitration generally are disputing rights and obligations created by a contract between them.
  • The involvement of the court in private arbitration is limited to compelling arbitration or to matters dealing with the enforcement of the award.
  • Unless otherwise provided, in private arbitration, discovery is more limited, and evidentiary rules are more relaxed.

 

            Notwithstanding these caveats, court rules often do allow for voluntary submission to court-annexed arbitration.

  

Dispute review boards

         

       Dispute review boards are a product of the construction industry that might have application to other disputes or projects as well. A dispute review board ("DRB") is a panel consisting of each party's representatives and a neutral chairperson. At first glance, DRBs may resemble arbitration panels using party-appointed or "advocate" arbitrators. However, there are several critical differences.

           

       The most important difference is the fact that the DRB's recommendation is generally not binding. In addition, the DRB is formed at the start of the project and meets periodically throughout the life of the project. While a DRB may look similar to an arbitration panel, its function is more akin to that of a mediator. The existence of a DRB at a project is intended to:

 

  • ·force the parties to confront issues as they arise;
  •  encourage meaningful dialogue and mutual understanding;
  •  communicate problems to the other party in terms, which are more understandable to that party;
  •  probe to disclose the underlying interests; and
  •  prevent disputes from escalating.

 

       The perceived benefits of the DRB process are that disputes are resolved at the time they arise, before the project progresses. It thus saves time and money, and forces a focus on the mutually defined goals of the project.

  

Partnering 

           

       An innovative form of ADR is partnering. Partnering is being used with some frequency in the construction industry, and may have applications in other areas as well.

 

       In a "partnered" project, representatives of the major participants meet together in a retreat setting to mutually define the goals of the project. They also provide a mutually agreed upon procedure to resolve disputes at the lowest level of corporate interaction. The underlying assumption of partnering is that when people of goodwill reason together for the purpose of achieving a commonly defined objective, that reason will prevail and agreement will be reached.

 

       If disputes are not resolved at the lowest level, the partnering agreement provides other, higher levels of meeting and discussion. If necessary, the chief executives are ultimately available to resolve the dispute.

 

        In partnering arrangements, the dispute resolution process is designed to take place during the life of the project, and does not wait until completion before initiating the resolution process

  

Private judging 

           

       There are three general types of private judges:

 

(1)  The temporary or "rent-a-judge" who, with the agreement of the parties and the approval of the court, undertakes to serve all judicial functions required at the trial level, including rendering a judgment.

(2)  A private judge appointed by the court, in some jurisdictions, as a general referee to take evidence and render a report to the court which the court might adopt as the judgment.

(3)  A special referee or master appointed by the court to perform a specified judicial function such as control of discovery, or the reception and collation of accounting or other technical evidence.

 

       One perceived advantage of private judging is the availability of normal appellate review of a decision seen as flawed by one party. Such appellate review is maintained, however, at the expense of certainty of judgment, and may also reduce the cost savings associated with ADR.

  

Collaborative law and settlement counsel

        

       Among the newest and most innovative forms of dispute resolution are the processes involving collaborative law and settlement counsel. In the collaborative law process, trained litigation counsel on each side agree to settle the matter without litigation or even the threat of litigation. The collaborative agreement also requires counsel to take a reasoned stand on every issue, to keep discovery informal and cooperative, and to negotiate in good faith. If either party seeks court intervention, both attorneys must withdraw from representation.  The Massachusetts Collaborative Law Council is an excellent resource for those interested in this process.

 

       In a related approach, settlement counsel, who are typically business litigation lawyers trained in negotiation and settlement techniques, facilitate communication and the exchange of information to help their clients reach resolution. The focus of both processes is on problem solving, and both are excellent examples of ways in which litigation counsel are able to meet the needs of their clients in a non-litigation context. 

 

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* Adapted in part from Chapter 1 of Roth, et. al., The Alternative Dispute Resolution Practice Guide, copyright © 1993-20017 Thomson/West.  Used with permission; all rights reserved.

 

1 See, Kellor, F., American Arbitration: Its History, Functions, and Achievements, 3 (Port Washington, N.Y.: Kennikat Press 1948)

 

2 Smith, G., The Greeks Had a Word For It - 25 Centuries Ago, 1, Nos. 4-5 Arb. Mag. 5 (1943)

 

3 See, Yarn, Douglas H., The Attorney as Duelist's Friend: Lessons From the Code Duello, Case Western Law Review, Fall 2000

 

4 Burchell v. Marsh, 58 U.S. 344, 17 How. 344, 15 L. Ed. 96 (1854)

 

Id.

 

6 See, e.g., Williams v. First Nat. Bank, 216 U.S. 582, 30 S. Ct. 441, 54 L. Ed. 625 (1910)

 

 

 

 

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