|ADR 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. For more information on ADR practice, see The Alternative Dispute Resolution Practice Guide.
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.
Bette Roth has handled at least 1,500 cases as a mediator, and has resolved more than 95% of them.
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.
Since adequate preparation is essential, counsel and clients should consider a number of issues in the practice of mediation:
– Who should attend the mediation session? –
– Do we want the mediator to give 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 works with the parties and their counsel through these issues before the start of the mediation session or throughout the process as needed.
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 more than 350 arbitrations, and has presided over dozens of full arbitration hearings.
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 numerous disputes both privately, and through agency or court-referrals.
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.
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.
When faced with allegations of discriminatory or other wrongful behavior, employers often seek the help of a neutral third party to investigate the claims. Bette Roth has been retained on numerous occasions to conduct workplace investigations.
For the types of cases Ms. Roth has handled, see the “Substantive Areas” listed in the page “About Bette Roth”.
Occasionally discounted for financial need, Ms. Roth’s rates are $500 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 takes place less than one week before the scheduled mediation date and four weeks before the scheduled arbitration date(s).