Alternative Dispute Resolution – It’s Like The New Coke, Just Not Awful And Unnecessary
I think I’m in one of strangest stages of my life. It’s stranger than the then-mysterious state of puberty and even odder than the period of my life where my mom wanted to take family photos every month. No, what I’m going through now is much different because I’m not only at an age where my buddies have started to settle down and marry, but I’m also at the age where they’re starting to get divorces. The other day an old friend told me his marriage was finally getting to be too much for him. His relationship with his wife had completely broken down. They no longer spoke to each other, let alone sleep in the same room. He told me he wanted to get a divorce, but he couldn’t because he had kids and his finances were too intertwined with his wife. All of the factors, he claimed, would make the legal fees to get a divorce astronomically high.
Does this sound familiar to any of you out there? No? Well aren’t you happy… Seriously, though normally under such a set of facts, legal fees would be really high there is another way to get through your legal issue without, to use the an old clichÃ©, breaking the bank. And that way is… drum roll, please… alternative dispute resolution.
Yeah, I know, not as exciting as you’d expect, especially considering the drum roll, but it really is an effect, efficient, and inexpensive option if done correctly.
So the first question you may wondering is, “what’s alternative dispute resolution? Alternative dispute resolution, or ADR as it’s known in the legal world, is a procedure for settling disputes through means other litigation. The alternative means you can employ to settle your dispute are numerous, but what they all boil down to is essentially resolving your dispute the old fashioned way, sitting face-to-face with the other person and hashing out your grievances. The differences being that the negotiation is much more structured, usually overseen by one or more neutral third-parties, and generally, in the case of arbitration, are as legally binding as a court judgment without the all the extra costs.
The two most popular forms of ADR are arbitration and mediation.
Of the two, arbitration is more similar to an actual court trial. Parties agree beforehand to resolve their dispute and usually hire one or more arbitrators (generally they are lawyers or former judges) to present their cases to and in the end, the arbitrator(s) hand down a judgment. This is the more popular method employed in most potential legal situations due to the fact that arbitration judgments are almost always held to be as legally binding as a court decision. And in the case of disputes between parties of foreign nationalities, arbitration judgments are held in especially high deference by US courts. But when considering using this method, one should also take note of the fact that arbitration judgments are generally not appealable, which means if the arbitrator rules against you or not to your satisfaction, you’re pretty much stuck with it. Evidence discovery is usually more limited, as well, when compared to what you get with a court trial. Also once parties agree to enter into arbitration, they generally cannot back out of it until a judgment is given unless both parties agree to no longer arbitrate.
Mediation is the other most popular ADR method, particularly in divorce disputes. Like arbitration, mediation require both parties to agree beforehand to enter this form of ADR and will hire and present their case to one or more third-parties (who are also generally lawyers or former judges). The difference here is that the third-party is really a mediator, meaning that he or she is really there to help the two parties reach an agreement with one another, and not to hand down judgments. The mediator can do this, however, if the parties agree to allow him or her to doo so. In fact, the two parties can agree that the mediator has to do so dressed in parachute pants and standing on his head – assuming the mediator is willing/desperate enough for the business, of course. Why is that? Well, because mediation is essentially an advance contract creation session between the two parties where they can agree to do anything they want to resolve their dispute. Mediation essentially gives the power to the parties to decide the best way to split their assets, decide who gets the kids, and so forth. The downside is that unlike arbitration, mediation aren’t generally as legally binding. Also, unlike arbitration, mediation can be ended by either party without the other’s consent, which means there’s a chance that the dispute won’t just be resolved, but that you could also be out for the time and money you put into employing mediation.
So next time you get the need to ditch your spouse (yeah, I know I could’ve phrased that better) try ADR. It’s usually the cheaper and quicker way to go. All you need is an experienced lawyer and a willingness to sit down with the other party without ripping their face off.