Legal Dictionary
ADR – Function: abbreviation; alternative dispute resolution
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Merriam-Webster’s Dictionary of Law, © 1996 Merriam-Webster, Inc.
It used to be that things were fairly simple. If you had a legal dispute, you went to a local attorney to find out your rights. You and your attorney reviewed the law and the facts and you took your best shot in court. The idea was that the proper use of the evidence, a good attorney and a court of law would sort it out and justice would be done.
Then the court dockets became clogged. Good attorneys became too costly for the average person. Your day in court became a half day squeezed in between nine other cases on the docket. Your attorney tells you to try mediation or arbitration to save on costs; or the court orders you to mediation before you can appear before the judge. Worse, you go before a judge for the fourth time because your ex didn’t bring the kids back on time and the judge orders you to see a parenting coordinator. A parenting what?
This article discusses some of the popular alternative dispute solutions being used by attorneys, the courts, businesses and private individuals. There is no “right” model for everyone. Some solutions are permanent, some are flexible, some you need an attorney and many you can do yourself.
ARBITRATION
Arbitration is not a new concept and it is not just for sports teams. It has been used by state agencies for many years with varying degrees of success. Corporations began turning to it more than 100 years ago, and merchants have been using it all over the world for thousands of years.It is gaining popularity today because it reduces costs, is faster and less formal than court proceedings, it reduces the need for litigation attorneys, and you get a say in who hears your case. Some arbitration consist of a panel of three arbitrators and others have only one. Often, you can choose from a list of arbitrators or a recommendation by an attorney or associate.
Probably the most common place you find arbitration in the private sector in Florida is condo associations and HOAs, labor, or contract disputes. Arbitration can be binding or non-binding and many contracts have arbitration clauses that must be satisfied before traditional litigation can occur.
Arbitration is the most formal of the modern ADR methods for resolving disputes. For example, if you decide to have one arbitrator, that individual will hold a hearing just as if you went to a regular court. However, the rules in arbitration are very different than those you may have seen in a courtroom, while still providing you with a formal hearing process. Attorneys are welcome, but not required. However, because arbitration can be binding, and your appeal options may be limited, attorneys are strongly recommended.
There are several benefits to arbitrating your dispute. First, as previously mentioned, you have a say in who hears your case rather than being randomly assigned by a judge. Second, arbitration shortens the time frame, for your case. It allows you to schedule your case rather than having to work around the court’s calendar. Third, the procedures, formalities, rules of evidence and the conduct of the hearing are all designed to be more relaxed than a court room. Next, when you schedule your witnesses you don’t have to repeatedly inconvenience them if court is running behind. If your witness takes a day off, a good arbitrator will try to schedule the time to make sure they get into the hearing. Another benefit is getting a decision quickly. Florida law requires that any court-referred arbitration render a decision within 10 days after the hearing unless there are special circumstances.
PARENTING COORDINATION
Next in formality is parenting coordination. This is a specialized process that is fairly new to Florida courts and, I hope a great idea for other jurisdictions. Everyone has heard of the family court cases that keep going back to court over and over again. Parenting coordinators are specially trained individuals that are assigned to tough cases to help parents and the courts create working solutions to ongoing parenting issues. Right now, almost all parenting coordination in Florida is done by court order and the parties have to be able to pay for the services. Attorneys are not permitted in the actual session, but the parties continue to have access to their attorney.
There are several benefits to parenting coordination that are not available to most family court cases. First, the Parenting Coordinator (“PC”) gets to know you and your unique family situation and issues over a longer period of time. There is no magic formula to make people get along better after a break up or divorce, but the PC can use many forms of dispute resolution to assist struggling families to comply with court orders and try to keep the process focused on the best interest of the children, as determined by the court.
It is not an easy process, but it has proven very effective since the start of the program just a few years ago. It uses traditional methods, court support, mediation, collaborative efforts, facilitation, and other resources to try to keep the family on track.
MEDIATION
Mediation is being used in the vast majority of cases today because it is so effective and you get to help create the agreement rather than being ordered by a judge to comply with a decision. Mediators work with you to help you find solutions to your issues on your terms and according to your schedule. The concept is simple: no judge will ever know you or your situation better than you know it. Having a trained mediator helps you negotiate what you believe is the right solution for you, for your family, for your situation, for your outcomes. Mediation can also save thousands of dollars in costly litigation and months or years of time completing your case. Mediation is not the same as compromise. It is a unique set of solutions designed by you, agreed to by you, in cooperation with your opponent without having to drag each other through lengthy litigation, hard feelings and “traditional” solutions that just don’t work for your life. It can be court ordered, or it can be done privately either before or after filing a lawsuit, and can be done with or without an attorney. For example, many people today are using “compassionate” divorce mediation techniques that work with couples contemplating divorce without the hard feelings and costs of traditional divorce. A growing trend is couples seeking mediators before seeking attorneys, although the “jury is still out” about whether this will work in the long run. “Collaborative divorces” are also increasing in frequency, where the attorneys act as mediator and attorney, but only time will tell if this model will hold up to ethical and conflict issues.
FACILITATION
Finally, there is facilitation. This is often used in corporate settings or where several people need to work together to brainstorm ideas, solutions or projects. A good model for facilitation is a moderated brainstorming session. These programs are exciting, exhilarating, creative and have lasting effects on all participants. They open the door to tremendous growth, and facilitation is an outstanding morale booster for companies seeking to improve communications and productivity across departments or platforms. In a family setting it can be used to incorporate extended families and caregivers, and to promote cooperation and joint problem solving,
I hope this helps you better understand some of the alternative dispute solutions available to you. If you would like more information, you can contact Lyndy at her blog at Collaborative Solutions, P.A.
What Exactly Is Alternative Dispute Resolution?
Lyndy is a regular contributing author for several websites and blogs.
She is new to Ezine but her submissions include articles on books, book reviews, recipes, law, arbitration, mediation, gourmet foods, coffee and chocolate and politics. She is an attorney in Florida and New York and she is an arbitrator, mediator and facilitator for the courts and private companies. You can read some of her other articles at Collaborative Solutions, P.A.
Lyndy writes the “Aspirations” column for self help, personal and professional growth and she interviews and features many prominent authors and motivational authors and speakers. She is also a main contributing author to the columns “Legal Ease” for law students and professionals and “Board Room” for business, restructuring and business promotion. Her legal blog posts articles and resources for all types of alternative dispute resolutions including parenting coordination, mediation, facilitation and arbitration.
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