Resolving Disputes Without a Trial

Q.: What is ADR?

A.: Not all disputes can or should be resolved in court. The term “alternative dispute resolution” (ADR) has been coined to describe a number of different processes disputants can use to resolve their disagreements without going through a trial. In a great many cases, these alternative processes are faster, more cost-effective and provide the disputing parties with more satisfaction than traditional litigation. The early use of ADR in various kinds of disputes has grown dramatically in recent years, even in cases where a lawsuit has already been filed, because of the growing recognition that up to 95 percent of all suits are going to be “settled out of court” anyway — too often after both sides have wasted time and expense preparing for a trial.

Q.: What are some forms of ADR?

A.: Most forms of ADR involve the use of a neutral third party to assist the parties to the dispute in resolving their problem. There are variations in the use of the neutral third party and the control the parties retain over the resolution of their dispute.

Negotiation - Informal sharing of information and exchange of settlement proposals between disputing parties with the goal of reaching a mutually acceptable solution. No third party is involved.

Mediation - A neutral third party called a mediator uses a structured process to help parties discuss the dispute, and generate and evaluate options for reaching a mutually acceptable agreement. The mediator, sometimes called a conciliator or a facilitator, assists the parties and does not have the power to impose a decision.

Early neutral evaluation - A neutral party having experience in the particular subject matter of the dispute listens to the parties’ facts and legal arguments, then comments on the strengths and weaknesses of the parties’ cases and may suggest a settlement option from which the parties continue further settlement negotiations.

Arbitration - Disputing parties present evidence and legal arguments to a mutually acceptable, neutral third party called an arbitrator, who renders a decision called an “award.” If the parties agree to a non-binding arbitration, the parties are not legally bound to accept the award. If binding arbitration has been agreed to, they are bound by that prior agreement to accept the award of the arbitrator. Panels of three arbitrators are also commonly used with the decision of the majority making the award.

Settlement conferences - Disputing parties meet with a judge or magistrate to review the case and explore settlement possibilities. In many Ohio counties, “Settlement Weeks” have been established during which volunteer mediators meet with parties in scores of pending cases to explore settlement possibilities.

Mini-trial - An abbreviated private trial that can be presided over by a neutral third party, at which each side’s lawyers present their cases for the senior officers of disputing corporations. This can include presentation of key witnesses and documents. After the presentations of both sides, the officers engage in further negotiations, with or without the neutral party’s assistance, in an effort to reach a final settlement.

Summary jury trial - Prior to the official trial date, a judge and jury listen to the attorneys make an abbreviated presentation of their client’s case, usually narrative with demonstrative exhibits, but no witnesses. The jury renders an “advisory verdict” that the parties use as a basis for further negotiations.

Private judging - If all disputing parties agree to do so, Ohio Revised Code Section 2701.10 permits them to hire a retired judge to conduct a private trial and render a binding decision, which then may be appealed to higher courts just like any other judicial decision.

Q.: Why use ADR?

A.: Some advantages of ADR:

1. The decision can be made by the parties, rather than being imposed by a court;
2. ADR can be much faster and less expensive than going to court; and
3. The decision can be one in which all parties win something, rather than one side winning and the other losing everything.

Q.: What kinds of disputes can be resolved by ADR?

A.: Any dispute can be resolved by the use of alternative forms of dispute resolution if the parties are willing to use them. Examples of disputes that can be resolved by ADR are: landlord-tenant; neighborhood; consumer-merchant; employer-employee; small claims; divorce; child custody, support and visitation; business; environmental; personal injury; and family.

Q.: How can I find an ADR program?

A.: Information concerning ADR programs in your area is available free-of-charge from:

The Ohio Commission on Dispute Resolution
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and Conflict Management
77 South High Street, 24th Floor
Columbus, Ohio 43215
(614) 752-9595

The Ohio State Bar Association has compiled a statewide Ohio Directory of Professionals in Dispute Resolution. Check with your local county or city bar association, clerk of courts or public library to see if they have a copy of the directory you can consult.

To order a copy of the directory, send $7 to: OSBA ADR Directory, P.O. Box 16562, Columbus, Ohio 43216-6562.

The information contained herein is general and should not be applied to specific legal problems without first consulting with one of our attorneys.

 
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