Alternate Dispute Resolution

Alternate Dispute Resolution

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Alternate Dispute Resolution


Alternate Dispute Resolution has many benefits serving as a legal substitute for resolving civil disputes. Most courts prefer the proceedings of an ADR as appose to Litigation. In some counties the option of ADR must be analyzed before attempting to initiate the proceedings of litigation. Most district courts along with appeal courts will oversee the negotiations of an ADR. In some circumstances ADRs do not settle well and in those instances the involvement of the courts will resolve the remaining disputes. Alternate Dispute Resolution is a large part of our legal system, which many citizens rely on to settle civil disputes. ADR has been a part of US legal history since the times of the colonies.
Alternate Dispute Resolution, better known as (ADR) in the legal field, was first used in the late 1800’s. ADR was initially used, not to replace judicial proceedings, but to work as a tool of resolve for matters like to civil struggle between laborers and management. ADR has various identifiable titles like mediation, negotiation and settlement. Congress authorized the process of ADR’s once becoming aware of independent civil bargaining in states like New York and Massachusetts. Following, official mediation agencies emerged. For example, the Board of Mediation and the National Mediation Board were two of the first ADRs to arise in the early 1900’s (Delaware, 2008). Around the same time, in 1913, the Newlands Act was passed in agreement of protecting the interest of voluntary negotiations. During the American Bar Association in 1932, lawyers were able to convince the courts to release qualifying cases to the process of mediation and collective bargaining. Lawyers argued that out-of-court negotiations would spare the time and cost of courts and parties alike. The courts agreed with the notion and soon followed. Later, throughout the civil rights movements of the 1960’s and 1970’s, Congress established the CRS, also known as, the Community Relations Service. Once the US Department of Justice founded this administration service, civilians in school, prisons and other civil matters could reap the benefits of conciliation.
The Superior Court of California, County of Santa Clara Alternative Dispute Resolution Information Sheet/Civil Division states, “ADR is the general term for a wide variety of dispute resolution processes that are alternative to litigation” (Santa Clara, 2002). The purpose of ADR is to save time and money, reduces stress, and provides more control, flexibility and participation in a legal matter.

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In regards to time, litigation can take years to close while the process of an ADR can take less than a month. The reduction or total omission of court cost, attorney’s fees and other proceeding expenses are possible when using the ADR in place of litigation. Most participants prefer the negotiations of an ADR as oppose to the stressful atmosphere of a litigation process. When using an ADR, the opposing parties have a broader arena of negations. Parties also have a better opportunity to express their concerns and interests during the negotiations of an ADR.
There are five main types of ADRs: Mediation, Arbitration, Neutral Evaluation, Special Masters and Referees, and Settlement Conferences. The mediation forum is very informal, informative and the decision of the dispute is decided upon by the participating parties and not the mediator. In Arbitration, there are two ways to resolve a dispute binding and non-binding arbitration. Once each side has argued their interest, the parties agree on a binding arbitration, which settles the dispute whether the opposing parties agrees on the decision of the arbitrary or not. On the other hand, a non-binding arbitration means the decision of the arbitrary can be rejected if one or both parties do not agree with the proposed decision. A Neutral forum, which is also informal, is used to help each party evaluate and dissect the matter. A non-binding decision is reach to resolve the dispute. Next, the Special Master and Referees are neutral parties hired to find facts regarding the matter to better assist the parties in an appropriate negotiation. Lastly, there is the Settlement of Conferences, which is a little more sophisticated and consists of experienced attorneys and retired judges. These entities act as mediators for the representing attorneys or participating parties themselves(Santa Clara, 2002).
The Superior Court of California, County of Santa Clara Alternative Dispute Resolution Information Sheet/Civil Division, also states that, “all matters shall be referred to an appropriate form of Alternative Dispute Resolution (ADR), before they are set for trial, unless there is a good cause to dispense with the ADR requirement”. In the state of Alabama, there are fifteen procedures used to qualify the official process of an Alternate Dispute Resolution. According to the Alabama Civil Court Mediation Rules include: (1) Definition of Mediation and Scope of Rules; (2) Limitation of Mediation; (3) Appointment of a Mediator; (4) Qualification of a Mediator; (5) Vacancies; (6) Assistance; (7) Time and Place of Mediation; (8) Identification of Matters in Dispute; (9)Authority of Mediator; (10) Privacy; (11) Confidentiality; (12) No Record; (3) Termination of Mediation; (14) Interpretation and Application of Rules; (15) Expenses of Mediation’s fees and Deposits (National Center, 2007). This long list of ADR qualifications has been determined in favor to the courts preference over litigation. Litigation is initiated when the plaintiff(s) file a complaint with the district court clerk. The litigation is normally initiated in pursuit of damages caused by the defendant(s) based on facts that will be evaluated during the courts legal proceedings. If he dispute addressed by the plaintiff(s) can be resolved through the ADR, there will be a great amount of time and money saved.
Many cases have been resolved using the aid of ADR. For example, Rick Fininen v. Mark Barlow, California Court of Appeal, 2nd District, August 22, 2006. In this mediation, a mediator was selected by the participating parties to resolve a dispute regarding a designer’s project having construction defects. Before the negotiation process, the mediator McCollum revealed that he was involved in another dispute regarding a similar matter between Fininen and an opposing party Young. McCollum announced that he would not be able to disclose any details regarding that separate ADR. The participating parties agreed and carried on with the negotiations. When the conclusion was met, McCollum found the award in favor of Fininen. Barlow filed a motion to vacate the award in reference to Section 1286.2 (a)(6) of the Code of Civil Procedure, accusing McCollum of exceeding the limited time allowed by the court to disclose the proceedings of the Fininen v. Young mediation (ADR Committee, 2008). The motion was overruled by the courts and appeal courts stating that it was obscured to vacate the awarded judgement based on an untimely disclosure. Furthermore, the court referenced that Barlow’s motion was initiated, “nine months after signing the stipulation naming the arbitrator, six months after seeing and recognizing the arbitrator, and nearly two months after the arbitrator issued the award in favor of his opponents”. Barlow has passed the opportunity to revolt the mediator in a timely matter. The courts dismissed his motion to vacate the award.
Alternate Dispute Resolution is a great tool for civilian and the court systems alike. ADR has sustained over time to prove to be a strong avenue to resolve civil dispute. Courts and participating parties are able to save time and money when choosing to negotiate disputes using the ADR process. There are many categories of ADR to select from depending on the dispute itself. Even though an ADR is a great avenue of resolve civilians always have the courts to turn to if a decision cannot me found or is disputed.

References

The National Center for State Court (2007). State Court Rules for ADR Programs. Retrieved February 22, 2008, from Alliance for Education in Dispute Resolution Web site: http://www.ilr.cornell.edu/alliance/resources/Legal/state_court_rules_adr.html
Santa Clara County DRPA Coordinator (2002). Santa Clara County Superior Court Alternative Dispute Resolution Information Sheet. Retrieved February 22, 2008, from Santa Clara County Superior Court. Web site: http://www.google.com/search?q=SANTA+CLARA+ALTERNATIVE+DISPUTE+RESOLUTION+
Delaware Judicial Information Center (2008). Superior Court Superior Service. Retrieved February 22, 2008, from History of Alternative Dispute Resolution. Web site: http://www.courts.state.ale.us/Courts/Superior%20Court/ADR?ADR/adr_history.htm
ADR Committee of the Business Law Section (2008). Rick Fininen v. Mark Barlow, California Court of Appeal, 2nd District (August 22, 2006). Retrieved February 20, 2008, from The State Bar of California. Web site: http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid
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