What are some personality factors to consider in the selection of a dispute resolution technique.?

Question

What should I expect or look out for with the two parties involved with ADR.

Answer 1

The three main ADR methods are mediation, non-binding arbitration (also known as neutral evaluation) and binding arbitration. Though often confused, they are all entirely different.

Mediation is a process of guided negotiation. The mediator acts as a combination referee and goalie, helping the parties to separate their actual objectives from emotional entanglements. The goal of mediation is to allow the parties to craft a mutual settlement that addresses their concerns and is a win-win for both/all parties.

Binding arbitration is the opposite end of the spectrum. It's effectively an informal trial, where the parties present witnesses and evidence, and the arbiter (often an attorney or retired judge) makes a decision about who wins. The binding nature of the process makes the decision and award generally not appealable to the courts. As such, binding arbitration is a contractual entity, since the parties must mutually agree to go to arbitration and to accept the decision as binding.

Neutral Evaluation is mid-way between the two. Effectively, it follows the same process as arbitration, but the decision reached is just an advisory opinion. It has no binding effect. The purpose is to give the parties an idea of what the likely result of a trial would be, with much less expense and effort. That way, they may choose to avoid the cost of the trial and reach a settlement, either through direct negotiation or mediation.

Mediation tends to work well if the parties are more interested in reaching a solution than in fighting each other. Because it results in a contractual settlement, the parties must be willing to abide by the terms of the mediated agreement, and must be willing to work towards achieving such an agreement. This is especially useful where the parties are merely unable to reach an agreement on their own, but aren't litigating out of spite. Mediation is also beneficial because the parties can craft remedies that the court would never consider. The parties can design a custom agreement that addresses all of there relevant issues, and then draft that as a settlement agreement. Once a proper agreement is signed, it can be enforced against either party the same as any other contract.

Binding arbitration, as noted, only occurs where the parties agree to go and agree to be bound. This agreement may be when an initial contract is made, if the contract contained an arbitration clause, or after the dispute arises. Arbitration is potentially more efficient than litigation, where the parties are unlikely to reach an agreement but where the legal issues are not particularly complex.