Alternative Dispute Resolution or ADR refers to a number of various processes that can be used to resolve legal disputes other than by litigation. Recently, methods of dispute resolution which focus on arbitration, mediation and negotiation as an alternative to adjudication have gained notoriety. This notoriety may have been caused by the public perception that ADR methods are less expensive, more efficient, and more satisfactory than the normal traditional course of litigation.
The goals of establishing these processes to resolve disputes as an alternative to more formal legal processes include: 1) to make the regular court system more efficient, less costly and more responsive to the needs of the litigants; 2) to offer alternative methods of dispute resolution in addition to the regular court system; and 3) to provide public education about the available alternatives. The ADR process that is used in a particular situation depends on the circumstances of that case.
According to the Commercial Division of the Supreme Court, New York County, the principal forms of ADR are the following: 1) Mediation- A process in which a Neutral attempts to facilitate a settlement of a dispute by conferring informally with the parties, jointly and in separate “caucuses,” and focusing upon practical concerns and needs as well as the merit of each side’s position; 2) Neutral Evaluation- A process in which an expert Neutral receives a presentation about the merits from each side and attempts to evaluate the presentations and predict how a court would decide the matter; 3) Arbitration- A process in which the parties present evidence to a neutral or panel of Neutrals, who then issues a decision determining the merits of the case. An arbitration may be binding or advisory, depending upon the agreement of the parties.
If binding, the decision of the arbitrator (s) ends the case, subject only to circumscribed review pursuant to Article 75 of the Civil Practice Law and Rules. Although ADR is an appealing alternative to litigation today, throughout the early history of the United States, courts expressed much hostility toward the idea of enforcing an agreement through any alternative dispute resolution. Throughout the 1900’s, United States courts were reluctant to enforce any agreement to arbitrate an existing or future dispute unless a specific statute explicitly allowed it. New York enacted the first statute which enforced agreements to arbitrate future disputes in 1920. The first Uniform Arbitration Act was adopted in 1925, which provided only for the irrevocability of agreements to arbitrate existing disputes.
The Federal Arbitration Act was enacted by Congress in 1925 changing the common law. The Act stated that written agreements to arbitrate existing or future disputes were valid, irrevocable, and enforceable. As arbitration became more widely accepted, statutes and acts were continuously passed enforcing agreements to arbitrate. In 1955, the second Uniform Arbitration Act was passed. In addition to enforcing existing agreements to arbitrate, this Act made agreements to arbitrate future disputes irrevocable. From this brief history of ADR provisions, it is easy to see the widespread acceptance of ADR in more recent times compared to the hostility that courts expressed toward it early on.
The trend of acceptance spread, and in May of 1986, forty-five states had enacted statutes similar to the second Uniform Arbitration Act, enforcing agreements to arbitrate future disputes. With all of these acts and statutes being passed, it seemed as though arbitration was the way to go. But as more and more agreements to arbitrate future disputes were executed, other nonarbitral forms of alternative dispute resolution such as mediation and neutral fact-finding became common. An agreement to mediate future disputes means that the parties want to present their side to a mediator, a third party who is neutral. This mediator’s sole purpose is to facilitate negotiation and settlement of the dispute between the parties. The mediator works with the parties to try and help them come up with an agreement both sides agree on.
However, a mediator does not have the power to impose a settlement on the parties. More like arbitration than mediation is neutral fact-finding. The two types of neutral fact-finding are binding and advisory. In both of these types, the neutral fact-finder decides the facts of the case and renders a decision based on those facts. When the neutral fact-finding is binding, the decision is final and binds the parties to the decision made. Likewise, when the fact-finding is advisory, the decision represents the fact-finders opinion and is not binding. The enforceability of agreements to submit future disputes to nonarbitral forms of alternative dispute resolution has been a heated topic of debate within the court system.
It is the consensus that courts have been reluctant to enforce mediation and neutral fact-finding resolution because they: 1) usually lack statutory backing; 2) usurp some of the courts power; 3) can be remedied by damages; and 4) do not guarantee settlement of the case. Contrary to the courts reluctance to enforce agreements to settle future disputes through nonarbitral alternative dispute resolution, Professor Katz offers a different theory which justifies enforcement of this type of resolution. In the American Business Law Journal, Katz states that the parties’ agreement to submit to an alternative dispute resolution process leads the parties to discuss the problems at hand and that the non-litigation process will facilitate a quick, more efficient, less costly resolution than the traditional way of litigation.
He theorizes that the argument against enforcement of alternative dispute resolution is without significance because more often than not the alternative method will result in a better overall solution than the litigation process. Arguments for and against ADR both seem to make sense. However, the future of ADR will largely depend on whether or not ADR lives up to its expectations. Whether, when compared to traditional litigation, it actually is more efficient, more expeditious and less costly. But until then, ADR seems like a good way to solve disputes today without dragging them through the rigorous proceedings of litigation, and it is also a good way to keep case management in the courts under control without overburdening the system.