From Erica Becks’ Cure for the Common Conflict.
One of the most common questions I am asked by potential clients is regarding the best way to resolve their dispute outside of court. There are so many forms of Alternative Dispute Resolution aka Conflict Resolution aka “ADR”. There is mediation, non-binding and binding arbitration, neutral case evaluation, facilitation, and conflict coaching, among others. When making a decision about which one would best suit your case, it is important to take into consideration the following factors: (Disclaimer: The information contained in this post pertains to general issues, and should not be relied upon or taken as legal advice. You should always contact an attorney in your state for legal advice relevant to your specific situation).
1. The Monetary Value of the Case-generally, with cases where there is significant financial and/or legal consideration involved, you want to, at the very least, seek out legal counsel. That said, it is not uncommon for attorneys to suggest that you commence the process of litigation, before participating in any type of ADR. There are various reasons for doing so, which might be advantageous. It would be wise to get a second and even third opinion from another attorney, to figure out the best legal remedy for your dispute.
2. Your Ability to Pay– ADR is not cheap. That said, most parties find that they generally end up spending only a fraction of what they might pay in attorney fees if they decide to undergo litigation. The cost of mediation for example, varies depending on the type of dispute, the experience of the mediator, and the mediator’s profession of origin (Note: most attorney-mediators tend to charge significantly more than non-attorney mediators). In the Bay Area, for example, I have found on average, the cost of ADR services to fall anywhere from $150-350 per hour. I would be suspicious of anyone who offers you a deal that is “too good to be true”, along with anyone whose fees seem exorbitant. In ADR, a high pricetag for services, isn’t necessarily an indicator of the quality or effectiveness of the service. For those who are seriously financially constrained, I would consider seeking out services at a community organization. They generally offer free to low cost mediation and/or facilitation services. It is important to note that these organizations are staffed by volunteers generally, who may or may not be very experienced in the area of your dispute. As a volunteer myself, I believe that community organizations do offer a viable alternative for those with financial limitations. That said, if money is not of concern, I would not necessarily suggest going to a community organization, particularly if there are significant financial considerations involved.
3. The Type of Dispute– The type of ADR you select is dependent on the type of dispute. While I cannot ‘suggest’ one type of ADR over the another, without being privvy to the details of the case, there are some trends in the types of ADR that are employed to resolve the various types of disputes. For example, most disputes involving transactional or contractual matters will generally be resolved through mediation and/or arbitration. While divorce and child custody disputes typically are resolved through mediation. Workplace (note: not employment law-related) disputes are frequently resolved through mediation, facilitation, and/or conflict coaching. I would always contact an ADR professional for their advice about which type of ADR would be most appropriate for the resolution of your case.
So, here are just a few considerations to keep in mind when selecting which type of ADR is best for you. That said, it is important to select one which fits YOUR needs best, above all else.
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