Alternative Dispute Resolution
In their 1966 hit single, John Sebastian and the Lovin’ Spoonful asked the musical question, “Did you ever have to make up your mind?”
They also asked, “Did you ever have to finally decide and say yes to one and let the other one ride?”
These certainly weren’t legal questions, but if they were and addressed to a judge about making trial decisions in their civil court cases, the answers for the most part would be “no.”
This is because approximately 97% of all civil cases are resolved without a trial primarily because of settlements.
Judges, lawyers, and policy makers understand and promote the idea that fair settlements as early in the legal process as possible, save on expenses, provide certainty, and are in everybody’s best interests.
Even though they aren’t trial decisions, judges make other decisions on these cases which help in the settlement process such as rulings on motions.
Additionally, judges can order the parties to participate in Alternative Dispute Resolution (ADR).
As the name implies this is a procedure, which allows the litigants an alternative to a trial to resolve their disputes.
ADR has existed in different forms for thousands of years and was first used in the United States of America in colonial times having come from England.
Mediation is a process where the parties have a trained neutral mediator to guide them in attempting to reach an agreed resolution of their differences by facilitating communications and finding mutually beneficial solutions. There are no sanctions if a settlement isn’t reached.
Case evaluation is more formal and allows the parties to present their respective cases to a panel of three attorneys who then confer and make a recommended award of damages.
If all parties accept it, the case is over.
If they don’t and the rejecting party doesn’t improve their position at trial, they must pay sanctions to the accepting party in the form of actual attorney’s fees and costs.
There’s no question about it — ADR has been shown to be effective and is here to stay.
Source: Contribution by NICArb’s research team
