Search
ADR provides options to litigation

Most civil disputes are resolved without filing a lawsuit, and most civil lawsuits are resolved without a trial. The Court and others offer a variety of Alternative Dispute Resolution (ADR) processes to help people resolve disputes without going to trial. ADR is usually less formal, less expensive, and less time-consuming than a trial. ADR can also give more opportunity to determine when and how their dispute will be resolved.

ADR provides options to litigation

The litigation process can be time consuming, expensive and emotionally draining. Fees may escalate well beyond the original estimate, and the time it takes to reach a decision in our busy courts can be months or even years. Many times, relationships suffer from the pressure. In considering all these circumstances, exploring options other than litigation can be a worthwhile pursuit.

TYPES OF ADR IN CIVIL CASES

The most commonly used ADR processes are mediation, arbitration, neutral evaluation and settlement conferences.

Arbitration. In arbitration, a neutral person called an “arbitrator” hears arguments and evidence from each side and then decides the outcome of the dispute. Arbitration is less formal than a trial, and the rules of evidence are often relaxed. Arbitration may be either "binding" or "nonbinding."

Binding arbitration means that the parties waive their right to a trial and agree to accept the arbitrator's decision as final. Generally, there is no right to appeal an arbitrator's decision.

Nonbinding arbitration means that the parties are free to request a trial if they do not accept the arbitrator's decision.

Cases for Which Arbitration May Be Appropriate. Arbitration is best for cases where the parties want another person to decide the outcome of their dispute for them but would like to avoid the formality, time, and expense of a trial. It may also be appropriate for complex matters where the parties want a decision-maker who has training or experience in the subject matter of the dispute.

Cases for Which Arbitration May Not Be Appropriate. If parties want to retain control over how their dispute is resolved, arbitration, particularly binding arbitration, is not appropriate. In binding arbitration, the parties generally cannot appeal the arbitrator's award, even if it is not supported by the evidence or the law. Even in nonbinding arbitration, if a party requests a trial and does not receive a more favorable result at trial than in arbitration, there may be penalties.

Mediation. In mediation, an impartial person called a "mediator" helps the parties try to reach a mutually acceptable resolution of the dispute. The mediator does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves. Mediation leaves control of the outcome with the parties.

Cases for Which Mediation May Be Appropriate. Mediation may be particularly useful when parties have a relationship they want to preserve. So when family members, neighbors, or business partners have a dispute, mediation may be the ADR process to use. Mediation is also effective when emotions are getting in the way of resolution. An effective mediator can hear the parties out and help them communicate with each other in an effective and nondestructive manner.

Cases for Which Mediation May Not Be Appropriate. Mediation may not be effective if one of the parties is unwilling to cooperate or compromise. Mediation also may not be effective if one of the parties has a significant advantage in power over the other. Therefore, it may not be a good choice if the parties have a history of abuse or victimization.

Neutral Evaluation. In neutral evaluation, each party gets a chance to present the case to a neutral person called an "evaluator." The evaluator then gives an opinion on the strengths and weaknesses of each party's evidence and arguments and about how the dispute could be resolved. The evaluator is often an expert in the subject matter of the dispute. Although the evaluator's opinion is not binding, the parties typically use it as a basis for trying to negotiate a resolution of the dispute.

Cases for Which Neutral Evaluation May Be Appropriate. Neutral evaluation may be most appropriate in cases in which there are technical issues that require special expertise to resolve or the only significant issue in the case is the amount of damages.

Cases for Which Neutral Evaluation May Not Be Appropriate. Neutral evaluation may not be appropriate when there are significant personal or emotional barriers to resolving the dispute.

Settlement Conferences. Settlement conferences may be either mandatory or voluntary. In both types of settlement conferences, the parties and their attorneys meet with a judge (or a temporary judge) to discuss possible settlement of their dispute. The judge does not make a decision in the case but assists the parties in evaluating the strengths and weaknesses of the case and in negotiating a settlement. Settlement conferences are appropriate in any case where settlement is an option. Mandatory settlement conferences are often held close to the date a case is set for trial.

What are the advantages and disadvantages of ADR?

TYPES OF ADR IN CIVIL CASES

The most commonly used ADR processes are mediation, arbitration, neutral evaluation and settlement conferences.

Arbitration. In arbitration, a neutral person called an “arbitrator” hears arguments and evidence from each side and then decides the outcome of the dispute. Arbitration is less formal than a trial, and the rules of evidence are often relaxed. Arbitration may be either "binding" or "nonbinding."

Binding arbitration means that the parties waive their right to a trial and agree to accept the arbitrator's decision as final. Generally, there is no right to appeal an arbitrator's decision.

Nonbinding arbitration means that the parties are free to request a trial if they do not accept the arbitrator's decision.

Cases for Which Arbitration May Be Appropriate. Arbitration is best for cases where the parties want another person to decide the outcome of their dispute for them but would like to avoid the formality, time, and expense of a trial. It may also be appropriate for complex matters where the parties want a decision-maker who has training or experience in the subject matter of the dispute.

Cases for Which Arbitration May Not Be Appropriate. If parties want to retain control over how their dispute is resolved, arbitration, particularly binding arbitration, is not appropriate. In binding arbitration, the parties generally cannot appeal the arbitrator's award, even if it is not supported by the evidence or the law. Even in nonbinding arbitration, if a party requests a trial and does not receive a more favorable result at trial than in arbitration, there may be penalties.

Mediation. In mediation, an impartial person called a "mediator" helps the parties try to reach a mutually acceptable resolution of the dispute. The mediator does not decide the dispute but helps the parties communicate so they can try to settle the dispute themselves. Mediation leaves control of the outcome with the parties.

Cases for Which Mediation May Be Appropriate. Mediation may be particularly useful when parties have a relationship they want to preserve. So when family members, neighbors, or business partners have a dispute, mediation may be the ADR process to use. Mediation is also effective when emotions are getting in the way of resolution. An effective mediator can hear the parties out and help them communicate with each other in an effective and nondestructive manner.

Cases for Which Mediation May Not Be Appropriate. Mediation may not be effective if one of the parties is unwilling to cooperate or compromise. Mediation also may not be effective if one of the parties has a significant advantage in power over the other. Therefore, it may not be a good choice if the parties have a history of abuse or victimization.

Neutral Evaluation. In neutral evaluation, each party gets a chance to present the case to a neutral person called an "evaluator." The evaluator then gives an opinion on the strengths and weaknesses of each party's evidence and arguments and about how the dispute could be resolved. The evaluator is often an expert in the subject matter of the dispute. Although the evaluator's opinion is not binding, the parties typically use it as a basis for trying to negotiate a resolution of the dispute.

Cases for Which Neutral Evaluation May Be Appropriate. Neutral evaluation may be most appropriate in cases in which there are technical issues that require special expertise to resolve or the only significant issue in the case is the amount of damages.

Cases for Which Neutral Evaluation May Not Be Appropriate. Neutral evaluation may not be appropriate when there are significant personal or emotional barriers to resolving the dispute.

Settlement Conferences. Settlement conferences may be either mandatory or voluntary. In both types of settlement conferences, the parties and their attorneys meet with a judge (or a temporary judge) to discuss possible settlement of their dispute. The judge does not make a decision in the case but assists the parties in evaluating the strengths and weaknesses of the case and in negotiating a settlement. Settlement conferences are appropriate in any case where settlement is an option. Mandatory settlement conferences are often held close to the date a case is set for trial.

What are my options?

The Court sponsors three highly effective ADR programs: Judicial Arbitration, Civil Mediation and Early Neutral Evaluation, each described below.

JUDICIAL ARBITRATION

In Judicial Arbitration, each side in the dispute presents its case, including evidence, to a neutral third party called an “arbitrator,” rather than to a judge. The arbitrator, who is an attorney on the Court's Judicial Arbitration Panel, issues an award based on the evidence just as a judge would, within a time frame set by the Court. Although evidence is presented, Judicial Arbitration is a less formal process than litigation.

Judicial Arbitration is nonbinding, which means that the participants in the case are not required to accept the arbitrator's award. A party may instead request a “trial de novo,” which returns the case to the Court's calendar as if the arbitration had not occurred. If the parties do not request a trial de novo, they are accepting the arbitrator's award as a final decision.

A case may be ordered into Judicial Arbitration upon the stipulation of the parties to pay the $150 Judicial Arbitration Fee. A case referred to the Judicial Arbitration process can be withdrawn from the process before the arbitration session only by Court order.

Parties may seek private arbitration outside the Court's Judicial Arbitration program. If the parties agree to binding arbitration, they are waiving their right to a trial.

CIVIL MEDIATION

In Civil Mediation, a neutral third party called a “mediator” helps participants in the dispute create their own resolution. Unlike an arbitrator, the mediator makes no decision or findings of facts of the case and makes no award. Rather, the mediator helps facilitate a discussion in which the parties reach a mutually agreed upon settlement.

To accomplish this, mediators foster communication among the parties to:

  • Clarify issues, interests and needs;
  • Explore the merits of each party's positions; and
  • Identify possible options for resolution.

One of the primary goals of mediation is enhancing the future relationship of the parties involved in the dispute, so the process is less adversarial and formal than either litigation or arbitration. For example, the rules of evidence and formal court procedures do not apply to mediation.

Sometimes mediation does not result in an agreement or resolution. In these cases, the parties have the right to return to court for a litigated decision. If the case returns to court, the mediator cannot be called to testify or produce notes or records of the mediation, as the rules of evidence are not the same for mediation as they are for litigation.

Mediators in the Court's Civil Mediation Program are all experienced attorneys who have received training and have the experience required by California law to be mediators in a court-connected mediation program.

Survey results of participants in mediation consistently demonstrate a high satisfaction rate with both the results of the mediation and with the process. Because the resolution is determined by the parties and is not imposed on them, settlements achieved in mediation are upheld easily by the parties, and the agreements reached help to foster positive future relationships.

EARLY NEUTRAL EVALUATION

Early Neutral Evaluation (ENE) provides parties and their counsel, on a voluntary basis and in a confidential session, the opportunity to make summary presentations of their claims and defenses and receive a non-binding evaluation by an experienced neutral called an “evaluator” with subject matter expertise.

The evaluator, an experienced attorney with expertise in the subject matter of the case, will convene an informal meeting of clients and counsel. At the informal meeting, each side will informally present evidence and arguments supporting its case without regard to Rules of Evidence and without direct or cross-examination of witnesses.

The evaluator will ask clarifying questions after the initial presentations, and then each side may present a responsive presentation. Following the presentations, the evaluator will identify areas of agreement and disagreement, clarify and focus the issues, and encourage the parties to enter procedural and substantive stipulations.

The evaluator will then prepare an evaluation, outside the presence of the parties, which may include an estimate, where feasible, of the likelihood of liability and the dollar range of damages, and an assessment of the relative strengths and weaknesses of each party's case.

If requested by the parties, the evaluator will also facilitate settlement discussions.

© 2014 Superior Court of Orange County