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Creativity is the Key to Effective Alternative Dispute Resolution

Following are some procedures you might consider:

Arbitration: Similar to a court trial, but less formal. The arbitrator takes evidence and decides the matter for the parties. Historically, arbitrators were people knowledgeable in the trade or industry. They took a more equitable approach with less reliance on strict rules of evidence and procedure. Now, even though the arbitrator may be an attorney or retired judge, he or she need not follow strict rules of evidence and can rule on legal issues based upon equitable principles. There is virtually no appeal, so the procedure is usually efficient and final.

Mediation: The parties themselves reach their own agreement to resolve the matter. The mediator assists them in communicating. A purely facilitative mediator expresses no opinion on the matter. An evaluative mediator will express opinions and advise the parties on the resolution. A good mediator will use a little of each approach at the appropriate time.

Settlement conference: More evaluative than mediation. A sitting judge normally deals just with the attorneys, not with the clients. Pressure of impending trial may help, but oftentimes it also results in buyer’s remorse. Judge’s rulings on pre-trial motions may also facilitate resolution.

Early neutral evaluation: Similar to arbitration, but abbreviated and non-binding. The neutral gives an opinion on the value of the case and may suggest approaches for settlement.

Hi/Lo arbitration: The parties agree, before arbitration, on the minimum and maximum award. The arbitrator’s award must fall within those figures or it will be reduced or increased to fall within the figures. Arbitrator may or may not know the limits.

Baseball arbitration: Take off on Hi/Lo arbitration. Parties state their best offers and arbitrator is limited to selecting one of them. This forces parties to make offers as reasonable as possible. Consequently, the process often results in a negotiated agreement between the parties.

Night baseball arbitration: Same as above, but arbitrator is not told of the parties’ exact positions. The arbitrator’s decision is then rounded to the nearest position.

Tiger’s win-win golf arbitration: As far as I know there is no such thing, but if you hear of any new procedures, let me know.

Mini trial: Each counsel presents his or her case in an abbreviated form to a panel of decision-makers from all sides of the case. The panel members then engage in negotiations facilitated by a mediator. Advantage – it educates the decision-makers to all aspects of the case of the case so it increases the potential for success in the mediation phase. Disadvantage – time consuming.

Summary jury trial: Similar to “mini trial” but case is presented to a jury of people unrelated to, and unfamiliar with, the case. The presentation may consist of some form of abbreviated evidence or may even be limited to attorney argument. The purpose is to obtain general impressions of jurors and jury as a whole. Very seldom used because it is burdensome to organize and may not be reflective of a full trial.

Private jury trial: There are providers that will obtain jurors, facilities and a private judge and staff similar to a public courtroom. Advantage – control over the availability of the judge and timing of the proceeding. Disadvantage – cost.

Med/arb: A mediation is conducted first. If the matter is not resolved it converts to an arbitration where the neutral then decides the case. Advantage – There will be a resolution. Disadvantage – parties may be reluctant to give their best offers, knowing they will have to litigate in front of the same neutral. Inadmissible material may be disclosed during the mediation phase and ex parte statements to the mediator may improperly influence the arbitrator’s decision. The neutral may be reluctant to be too critical of the parties during the mediation phase for fear of appearing biased if it goes into the arbitration phase.

Arb/med: Arbitrator hears case, makes decision and seals it. Parties then mediate. Disadvantage – takes longer. Puts mediator in difficult position because he/she has already formed an opinion on value of case. Advantage – mediator has evaluated witnesses and can state much more authoritative opinion of witnesses’ credibility and, again, the case will be resolved.

Med/aolo (Mediation with Arbitration On Last Offers): A mediation is conducted with a prior agreement that, if the case does not settle, the mediator becomes an arbitrator and, depending on the agreement, must either select one of the last offers or a number in between the two. Advantage – gives the parties a chance to settle their own dispute and gives them great incentive to make their absolute best offer. Disadvantage – same as Med/Arb above. Mediator should reveal all confidential information and allow response before making arbitration decision.


Darrell Lewis

Judge Lewis retired in 1999 and brings over 20 years experience as a general trial judge in Sacramento, California. His assignments included presiding judge of the appellate department, full-time civil law and motion calendars and full-time civil settlement conferences. His devotion to Alternative Dispute Resolution is widely recognized. He was… MORE >

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