Alternative Dispute Resolution
LeadersRay J. Koenig III , Jerri A. Ryan
Clark Hill has extensive experience in Alternative Dispute Resolution (ADR) procedures and assists clients frequently in resolving their disputes promptly, cost-effectively, and with an eye toward achieving a creative business solution, typically not available through the litigation system. There are a number of ADR procedures available, including arbitration, facilitation, evaluation, collaborative divorce, divorce mediation, and mini-trials. Through our considerable experience, gained both by serving to represent clients in ADR proceedings, and as moderators helping to fashion the solution in the process, we help our clients determine the appropriateness of ADR as early in the dispute as possible, and thereafter, help to structure the ADR proceedings to best fit the particular need.
Our ADR services can be an effective alternative to the traditional method of resolving disputes through the litigation system. We apply our considerable skills, decades of experience, and deep knowledge to settle disputes promptly, and more cost-effectively, than in typical court proceedings. ADR proceedings can also provide participants such benefits as confidentiality and creativity of solutions, which typically are not available through litigation.
Our team includes former judges at both the trial and appellate levels who are able to offer the unique perspective of having been the finder of fact in hundreds of legal disputes. Our attorneys have taken leadership roles in the various committees of the American Bar Association, and state and local bar associations, advocating alternative dispute resolution programs as an alternative to court litigation. We have a national reputation acting as moderators of ADR proceedings and frequently lecture on ADR topics at judicial institutes. We also train other lawyers in the field of ADR procedures. Our attorneys are panel members of the American Arbitration Association panel of Commercial, Construction and Employment Arbitrators and Mediators, and have been certified as Master Arbitrators and appointed to the Large Complex-Case Panel of Arbitrators.
ADR proceedings are designed to reduce the cost of litigation by streamlining the hearing process, using persons knowledgeable in the subject matter of the dispute, and strictly defining the information to be exchanged by the parties. Through these efforts, the length of the proceeding can be significantly shortened, reducing the high cost of discovery, motions, depositions, and trial, which are associated with traditional court proceedings.
ADR proceedings are private, confidential proceedings. Frequently there is no record made of the proceeding and the resolution can be drafted to safeguard proprietary, or even simply delicate, information. The proceedings are not open to the public, as is required in virtually all court matters. As a result, parties can resolve their disputes and their differences in private, and hopefully preserve a business relationship.
ADR proceedings are scheduled to accommodate the schedules of all parties and are not dependent upon finding available time on crowded court dockets. Moreover, ADR proceedings can be conducted in private, comfortable conference rooms at our offices or any location selected with the mutual consent of the parties.
Virtually any dispute can be resolved by ADR. We have acted as ADR facilitators, moderators, and representatives in matters as diverse as construction disputes, child custody proceedings, valuation of a dissenting shareholder’s stock interest in connection with a corporate merger, personal injury accidents, eminent domain proceedings, labor disputes, sexual harassment disputes, and professional liability matters, as well as complex business matters. Additionally, ADR techniques are extremely flexible and can be modified to address the parties’ specific concerns.
Typical ADR procedures include the following:
Facilitation or Mediation
Here, the facilitator acts as a neutral party to work toward a settlement between the parties by finding common ground for discussion, encouraging fair settlements, brainstorming for creative solutions, and otherwise providing the objective view of a knowledgeable third person to try to resolve stalemates. This is generally initiated even before, or shortly after, litigation commences.
Evaluation involves requesting one or more neutral parties to put a settlement value on a case following presentations by the parties of their respective positions. The evaluation procedure is typically more informal than court proceedings. The evaluations provide the parties with their objective assessment of the relative strengths and weaknesses of each party’s position, and terms upon which the case should settle. Often, the evaluation figure, which is non-binding, is a springboard for further settlement discussions should the parties not accept the evaluation. Very frequently, evaluation is combined with facilitation services to maximize the opportunity to resolve the dispute. Many of our litigators have extensive experience serving as Case Evaluators.
Arbitration is the most widely known and traditional alternative to litigation, in which a single arbitrator or panel of three arbitrators, chosen by mutual consent of the parties, hear and decide the dispute. This process can be binding in the same way as litigation since the award of the arbitrator(s) can be enforced by the courts. It differs from court litigation in that there is typically far less formal discovery, or information exchanged, if any, between the parties prior to the arbitration. We have a considerable number of accredited arbitrators through the American Arbitration Association (AAA), and our relationships with AAA and other organizations mean we have strong access and knowledge of potential arbitrators for any type of matter.
Mini-Trials are structured negotiations, in which each party’s best case is presented to the chief executive officers or other senior managers of both parties, and a moderator, in a joint session. There is often an exchange of information including documents, and witness interviews or depositions in advance of the presentations. Parties or their attorneys, if participating in the proceeding, present the matter as if at trial, with the CEOs or Senior Managers and moderator playing the part of judge and jury. The evidence is offered in summary fashion. After hearing each party’s best evidence and arguments, the CEOs or Senior Managers meet and attempt to resolve the dispute, with a better understanding of the strengths and weaknesses of their respective cases.