Alternative Dispute Resolution (ADR) refers to a set of methods or processes used to resolve disputes or conflicts outside of the traditional court system.  It provides parties with a less formal and more flexible approach to resolving their differences.  ADR is typically used when parties involved in a dispute prefer to avoid the time, expense, and adversarial nature of litigation.

Common forms of ADR include:

• Mediation:  In mediation, a neutral third party, known as the mediator, facilitates discussions between the disputing parties.  The mediator assists in communication, helps identify issues, and facilitates the negotiation process.  The goal is for the parties to reach a mutually acceptable agreement.
• Arbitration:  Arbitration involves the submission of a dispute to one or more impartial individuals, known as arbitrators, who act as private judges.  The arbitrators consider the evidence and arguments presented by both sides and make a binding decision.  Arbitration can be either binding (where the decision is enforceable) or non-binding (where the decision is advisory).
• Negotiation:  Negotiation is a direct dialogue between the parties involved in a dispute, with the aim of reaching a voluntary agreement.  It can occur informally or with the assistance of legal counsel or other professionals.  Negotiation allows for open discussions and creative problem-solving without the involvement of a third party.
• Conciliation:  Conciliation is a process similar to mediation, where a neutral third party, known as the conciliator, assists the parties in reaching a resolution.  However, in conciliation, the conciliator may take a more active role by providing suggestions and proposing solutions.
• Collaborative Law:  Collaborative law involves the parties and their respective attorneys entering into a formal agreement to work together to resolve the dispute.  It promotes open communication and problem-solving while emphasizing cooperation rather than adversarial positions.  If the collaborative process fails, the parties must seek new legal representation if they proceed to litigation.

The advantages of ADR include confidentiality, flexibility, cost-effectiveness, and the potential for maintaining or improving relationships between the parties.  However, the outcomes of ADR are generally not legally binding unless the parties agree to make them so or if the process used is binding arbitration.

Mediation and arbitration are both forms of Alternative Dispute Resolution (ADR), but they differ in several key ways:

• Role of the Neutral Third Party

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  In mediation, a neutral third party called the mediator facilitates the discussion between the disputing parties.  The mediator helps them communicate, understand each other's perspectives, and explore possible solutions.  The mediator does not have the authority to impose a decision on the parties or make judgments about the merits of the case.

  In arbitration, a neutral third party or a panel of arbitrators acts as a private judge.  The arbitrator(s) consider the evidence, listen to arguments from both sides, and make a binding or non-binding decision.  The arbitrator's role is to render a final decision that resolves the dispute, similar to a judge in a court of law.



• Decision-Making Authority

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  In mediation, the mediator does not make decisions for the parties.  Instead, they facilitate the negotiation process and help the parties reach a mutually acceptable agreement.  The final decision rests entirely with the parties themselves.  Mediation empowers the parties to control the outcome and encourages them to find a solution that meets their needs.

  In arbitration, the arbitrator(s) have the authority to make a decision that resolves the dispute.  Depending on the agreement of the parties, the arbitration decision can be binding, meaning it is enforceable and legally binding on the parties, or non-binding, in which case the decision serves as an advisory opinion that the parties can choose to accept or reject.



• Nature of the Process

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  Mediation is a collaborative process where the parties actively participate in the resolution of their dispute.  The mediator helps facilitate open communication, encourages the parties to express their interests and concerns, and assists in generating options for agreement.  The mediator does not take sides or advocate for any party's position.

  Arbitration, on the other hand, is an adversarial process that resembles a simplified version of a court trial.  Each party presents their case to the arbitrator(s), who act as decision-makers.  The parties typically have the opportunity to present evidence, call witnesses, and make arguments, similar to a court proceeding.



• Binding Nature of Outcomes

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  In mediation, any agreement reached by the parties is voluntary and requires their mutual consent.  The mediator does not impose a decision on the parties, and they are free to accept or reject the proposed resolution.  The outcome of mediation is only binding if the parties reach a mutually acceptable agreement and choose to formalize it.

  In arbitration, the decision rendered by the arbitrator(s) can be binding if the parties have agreed to binding arbitration.  In this case, the decision is enforceable and legally binding on the parties, similar to a court judgment.  However, if the arbitration is non-binding, the decision serves as an advisory opinion, and the parties can decide whether or not to accept it.

Overall, mediation emphasizes the parties' self-determination and control over the outcome, while arbitration involves a third party making a decision that resolves the dispute.

Contact Scott Zwillinger and/or Jennifer Rebholz to discuss your case or schedule an appointment.