Alternative Dispute Resolution, known also as ADR, is the field of law concerned with the use of an alternative proceedings to litigation for the final resolution of disputes. The field of ADR encompasses binding and non-binding arbitration, mediation, and settlement negotiations.
Familiarity with and competence in ADR is essential to all litigation attorneys. CPLS, P.A. practices in all areas of ADR, counsels clients in the proper use and form, interpretation, and need for arbitration clauses, and represents clients on a regular basis in arbitrations, mediation, and in settlement negotiations. Litigation is one, but only one, method for parties to resolve a dispute and, when in a client’s best interests, the firm will take full advantage of all ADR options.
Arbitration is essentially a manner of dispute resolution whereby parties have contractually agreed that their dispute will be heard and resolved by a panel of one or more neutral arbitrators, rather than by a judge and, if demanded, by a jury, in court. There are various arbitration organizations such as the American Arbitration Association (“AAA”), the United Nations Commission on International Trade Law (“UNCITRAL”), and the International Chamber of Commerce (“ICC”). Each organization has its own set of rules and procedures for the appointment of arbitrators, the conduct of the arbitration proceedings, and the entry of an arbitration decision known as an award. The arbitration panel will usually allow some degree of discovery of each party’s contentions and proof but it is generally narrower than is allowed in court. At the final hearing, arbitrators have broad discretion as to what proof to allow, how it will be received and the weight given to that proof. The rules of evidence enforced by courts are not strictly adhered to in arbitration. An arbitration award is often final and essentially unappealable because judicial review of awards by the courts is very limited.
Binding arbitration may be the required manner of dispute resolution if the parties have so agreed in a contract. Arbitration clauses have become very common in all manner of contracts and prevalent in many different industries. Indeed, arbitration has been Federally endorsed through enactment of the Federal Arbitration Act (“FAA”). The FAA requires all courts to stay litigation, whether commenced in a state or federal court, and to compel binding arbitration so long as there is a contractual arbitration clause and the parties’ dispute is within the scope of the clause. Florida has also promoted binding arbitration through enactment of the Florida Arbitration Act and the Florida International Arbitration Act.
Even in the absence of a contractual arbitration clause, courts in litigation may require the parties to submit to non-binding arbitration. Arbitration is generally viewed under ADR law as having advantages over litigation because of: perceived savings in costs, the private nature of the proceedings, the shorter time that may be required to resolve a dispute through arbitration, and the fact that the parties can assure themselves of more certainty in the process by agreeing in advance as to the identity of the decision-maker (including an industry specific arbitrator), the rules and procedures that will apply, and the potential remedies available in an award.
Another form of ADR is mediation which is essentially a formalized settlement conference. Federal and Florida courts generally require the parties to complete mediation in all cases before trial and may also require mediation be conducted on more than one occasion. Parties may also agree either in their contract or separately, after a dispute has arisen, to mediate their dispute before either party initiates more formal proceedings such as an arbitration or litigation.
Mediation is presided over by a trained mediator who does not decide the merits of the case or render a decision binding on the parties. Instead, the mediator’s role is to assist the parties in understanding the advantages and disadvantages of litigation (or arbitration) and the alternative options available for reaching a compromise and amicable resolution of their dispute. Typically, the parties each make an opening statement during the mediation session, which allows a useful opportunity to speak directly to the adverse party. Then, the parties recess separately for a series of alternating, private caucuses only with the mediator. In disputes involving claims for money damages, the mediator will often exchange offers and demands between the parties. If an agreement is reached, the terms will be memorialized in a written contract signed by the parties. Agreements reached during mediation are broadly enforced by the courts. If no agreement is reached, the mediation proceedings are confidential, any admissions during mediation are not evidence in the case, and the litigation (or arbitration) will continue.
Experienced attorneys generally discuss settlement with the opposing side throughout a representation. The vast majority of disputes are resolved amicably before any arbitration hearing or trial in a lawsuit. It is usually in the client’s interest for the attorneys to pursue a dual track of not only prosecuting formal dispute resolution proceedings, such as a lawsuit or arbitration, but also simultaneously and continuously discussing prospects and options for settlement. While settlement usually requires compromise by all parties, an amicable resolution has advantages including: assurance of a specific outcome rather than the uncertainty of result if a dispute is decided by a third party, limiting costs, and obtaining a private rather than a public resolution.