Court & Hearings

Let’s say you find yourself in a dispute with another person or business. If that dispute leads to a lawsuit, you might have to go to court. You and the other party would present your case. Then the judge or jury would make a final decision. 

But this court process is not the only way for people to resolve a dispute. You may be able to resolve your dispute using Alternative Dispute Resolution (ADR). Or, you may be required to, if you signed something that forces you to use ADR.

ADR may involve working together with the other person to settle your dispute before there is a lawsuit or before trial. You might do this with the help of an arbitrator, a neutral third person who is not involved in the dispute and who knows a lot about the law. Or it might involve presenting your case in a setting less formal than a courtroom.

The goal is to resolve your dispute without having to deal with the normal court process. This could save you time and money. It could also help you come up with a solution that is better for both sides. But there are downsides as well (see below).

How might I end up using ADR?

There are 3 primary ways you might use ADR:

• By choice: If you are in a dispute with someone, you can suggest ADR. You can do this whether the dispute is already in court or not. If the dispute is already in court, you may also ask the judge to allow you to try ADR before the case continues in court. 
• Because the judge or court required it: If your dispute is already in court, the judge might order you and the other person to try to use ADR. In some cases, arbitration is a required first step before going to trial. 
• Because you agreed to ADR: In certain cases, you may end up using ADR because you already agreed to do so. This may be true even though you were not aware that you agreed to ADR. Consider your job, for example. You might have signed something on your first day that says that any disputes between you and your employer must be resolved through ADR. In this case, you may not be able to sue your employer in court even if you wanted to. Another good example is Internet services. Think about the last time you signed up to use a service on the Internet, like Amazon. When you did, you may have clicked to accept an agreement called a Terms of Use agreement. That Terms of Use agreement may have stated that the user--you--agrees to use ADR to resolve any disputes that may arise between you and the company. In this case, if a dispute arose between you and the business, you would probably need to resolve that dispute through ADR.

Main types of ADR

There are several kinds of ADR. Three main types of ADR are: 

• Facilitation; 
• Mediation; and 
• Arbitration. 

How you end up in ADR will determine which method you use. For example, if you end up in ADR by choice, you and the other person generally have the freedom to choose your method. But if you end up in ADR because the judge required it, then the judge may determine which method you use. Or, a contract you already agreed to may determine the method. For this reason, it is a good idea to be familiar with each type.

Facilitation

This is the least formal method of the three. In facilitation, a person who is neutral in the dispute and trained in the law assists you and the other person in talking with one another. Neutral means that the person has no stake in the case. They are not for or against either party. 

The person may help you define the issues that need to be addressed and how to address them. The person may also serve as a go-between for you and the other person. They help by exchanging information by email, written documents, phone calls, or in-person meetings. A facilitator helps with the process for how to resolve a dispute. 

If you are in facilitation by choice, you and the other person might record any agreement you reach in writing. In this case, the document would serve as a contract between you and the other person. You might be able to sue the other person if they violate this agreement.

If you reach a facilitation agreement as part of an existing case, you can ask the judge to sign an Order that reflects your agreement. In this case, if the other person violated the agreement, then you could ask the court to enforce the judgment for you. 

In either case, facilitation is voluntary. No one could force you to come to an agreement with the other person. If you did not like the deal that the process lead to, then you could simply reject it.

Also, you can take steps to keep the facilitation process and any agreement private. This is something you generally cannot do in the normal court process. In the normal court process, all documents are in the public record. Facilitation records are generally not public.

[no-lexicon]Mediation

In mediation, a neutral third person, called a mediator, helps you and the other person work through the issues of your dispute. The mediator usually knows a lot about the facts of your dispute and the relevant law. Often, the mediation happens over the course of a few hours or a few days. 

Typically, the mediator is a person with lots of experience in the issues of your case. They use this experience to judge the strengths and weaknesses of each person’s case. The mediator will discuss these with you. They will also discuss the other person’s strengths and weaknesses with you.

Based on the mediator’s evaluation, they will begin to discuss settlement with you and the other person. This typically happens with you and the other person in separate rooms. The mediator will go back and forth between rooms as each side gives the mediator different terms of agreement. The mediator will give each side's offer to the other side. The other side will either accept the offer or reject it and suggest a new one. In an ideal case, the mediator forces you and the other person to take a realistic view of your case. This might lead to settlement.

Facilitation and mediation are similar.  A mediator is generally more of an expert in the subject area of the dispute, and will get more involved in the nitty gritty facts and details.  A facilitator will focus more on getting information and communication to flow between the people doing ADR..Facilitation and mediation are similar.  A mediator is generally more of an expert in the subject area of the dispute, and will get more involved in the nitty gritty facts and details.  A facilitator will focus more on getting information and communication to flow between the people doing ADR..Facilitation and mediation are similar. A mediator is generally more of an expert in the subject area of the dispute, and will get more involved in the nitty gritty facts and details. A facilitator will focus more on getting information and communication to flow between the people doing ADR. 

Like facilitation, the mediation process is entirely voluntary. Voluntary means that the mediator cannot force you to reach an agreement or settlement. Nor does the mediator have the power to reach a decision for you.

The process is also private. What you discuss with the other person will not be entered into the public record like a court decision would. If you and the other person reach a settlement, the same general process applies as with facilitation for enforcing the agreement.

Arbitration

Arbitration is the most formal of the 3. In arbitration, you and the other person select a neutral third person called an “arbitrator” to resolve the dispute. Or, you may have one selected for you, if you agreed to it, or the court says so. In some cases, you may have several people serve as an arbitration panel instead of just one.

In any case, both parties would give their evidence and arguments to the arbitrator in a hearing. The hearing may extend beyond one day. Usually, after the hearing, the arbitrator can make a decision in your case. This judgment may be called an “arbitration award.” 

Notice that in arbitration you give decision-making power to the arbitrator. You would not determine the outcome of the arbitration with the other party.

It is also important to know that the arbitration can either be binding or non-binding. Which form the arbitration takes depends on how you arrived in the arbitration. 

In a binding arbitration, the arbitrator’s award is the final resolution of the case. It gets entered by the court and will be enforced by it. You cannot appeal this decision except in very limited circumstances. 

In a non-binding arbitration, you have the power to reject the arbitrator’s decision. If you do that, then you are agreeing to continue with a lawsuit through the normal court process. 

Arbitration may sound a lot like the normal court process. But there are important differences. One big difference is that the formal rules of evidence and procedure do not apply in arbitration. The rules are whatever you and the other party say they are, or whatever the arbitrator determines. This allows for more freedom for you and the other person. But it also introduces a risk of unfairness. 

Like other ADR methods, the arbitration process and result generally stays private. In fact, an arbitration award often comes with a confidentiality agreement. This is often why companies include arbitration clauses in the contracts they make you sign to use their services.

Why would I choose ADR?

Here are some advantages of ADR:

• Quicker Resolution: Any of the 3 ADR methods listed above will generally proceed quicker than a normal court case.
• Less Expensive: ADR can save you money, but this is not always the case. Research any ADR process before using it because ADR can also involve fees.
• Less formality: The normal court process can be intimidating. ADR reduces some of the stress caused by the formality of a court dispute. It does not take place in a courthouse, there will be no court security officers, and you will most likely not be in front of a judge. This may create an environment in which you are better able to reach a result you are happy with.
• More flexibility: The normal court process is rigid compared to ADR. There are formal rules about procedure and evidence that you need to follow. These rules may limit how you conduct your case. But in ADR, there are less rules. You will often be able to decide the rules with the other person. You may be able to prove your case using procedures and evidence that you would not be able to use in court.
• More control: The normal court process determines a lot for you. The judge decides how the case progresses, and the outcome. With ADR, on the other hand, you and the other person keep a lot of this control for yourselves. Generally, you decide what the rules are. You decide the outcome and the terms of the eventual agreement, except in arbitration. This level of control may provide an attractive benefit.
• More privacy: As discussed above, ADR is usually private. The court process is usually public. 

What are the downsides to ADR?

Many of the benefits ADR offers also come with potential downsides. Knowing these downsides will help you make a better decision about whether to request ADR. If you have been forced into ADR, these downsides will help you know what to look out for.

• Potential for unfairness: Again, the normal court process has rules for procedure and evidence. These rules are designed in part to ensure fairness in the case. If you are in an arbitration that follows other rules, you may want to ask a lawyer to review them. You should be aware of how they are different and what those differences might mean for your case.
• Less public knowledge: In some cases, publicity is a good thing. For example, the public should know if a company is taking advantage of consumers. Other tenants should be able to find out if a landlord has been sued in the past. But certain people or businesses may try to use ADR to keep their failures private. If it is important for you to make something that has happened to you public, beware.
• Cases involving abuse or victimization: The idea behind ADR is that you and the other person will work together to achieve a result you can both live with. But if the other person is someone who has abused or victimized you in the past, then you may not be able to work together well enough for ADR to work. In cases of workplace harassment and discrimination, the law limits when an employer can force arbitration. It can be helpful to talk to a lawyer to determine your options. 
• Cases involving a power imbalance: ADR requires you and the other person to play on a level playing field. If your case is against a business or person with a lot of power, then they may be able to use those resources to your disadvantage. For example, they may already have a relationship with a mediator or arbitrator. And they may try to choose to use this person to gain an unfair advantage. This type of power imbalance between you and the other party may lead to a result you are not happy with. Of course, if you are forced into ADR against a business or person with a lot of money, then you may not have a lot of choice. But at least you will be aware so that you can identify and report potential unfairness.