Alternative Dispute resolution
Why use alternative dispute resolution? It provides you with control over the time and expense involved in resolving your disputes, saves time and money, and it is confidential. Alternative dispute resolution can be useful in cases that are in litigation, or headed there. It can also be useful at much earlier stages to resolve business issues such as employment or contract disputes without destroying the relationship between the parties. Virtually any area in which disputes may arise can benefit from the use of ADR such as real estate transactions, consumer issues, personal injuries and more, can be resolved or narrowed through ADR.
calls upon her years of experience as a litigator, in-house counsel, and
as a business owner, as well as her study of dispute resolution techniques
to help parties identify, defuse, and resolve disputes. Even when a dispute cannot be completely
resolved, alternative dispute resolution can be a valuable tool to help narrow the issues and take some of the "hot"
out of "hot button" issues between the parties.
Types of Alternative Dispute Resolution
Alternative dispute resolution, or ADR, encompasses many forms of dispute resolution, other than litigation in a court. Arbitration and mediation are the two most well-known forms of ADR.
Mediation is a process through which the parties can decide the outcome of
their own dispute. It is the mediator's job to help parties identify resolutions that work for them, rather than
finding facts or deciding legal issues as a court and jury would do. Because
the mediator does not have authority to order or design a settlement, the
parties are empowered to design their own resolution. The beauty of the process is that it is
completely within the control of the individuals or entities involved in the
Mediation is a party-focused method of resolving disputes. In mediation, the parties have the greatest ability to fashion both how to reach resolution and what the resolution is. The mediator is a neutral person, most often selected by the parties, who facilitates the parties in understanding options, seeing the dispute from all perspectives, and fashioning a resolution the parties can be comfortable with. Mediation is completely voluntary; without agreement among the parties, no resolution occurs. It is part of the mediator's work to help the parties reach common ground. Mediation is also completely confidential. The mediator's observations, work papers, and recollections are not subject to discovery in the event the parties fail to reach agreement and later pursue litigation. This confidentiality allows the parties to frankly discuss their viewpoints and settlement options.
Arbitration more closely resembles a trial. The arbitrator is most often selected by the parties and will hold a hearing during which witnesses may be sworn and testimony taken. Discovery may be permitted (although it is generally limited in scope), and the arbitrator may issue subpoenas. Unlike mediation, which may end without resolution or which may result in a negotiated resolution based upon the wishes of the parties, the arbitrator will reach a decision based upon the evidence presented and issue a written "award" resolving the issues presented. In most cases, the decision of the arbitrator is final and cannot be appealed.
Mediation-Arbitration, Mini-Trial, Early Neutral Evaluation, and other options also exist for alternative dispute resolution. Ms. Hendley can act as a neutral and can assist you in determining which of these options is best for your dispute.
Use of Alternative Dispute Resolution in Litigation
Most civil cases filed with courts in Minnesota are referred for alternative dispute resolution. Alternative dispute resolution is also a valuable tool for resolving issues without the need to bring a lawsuit. Whether you choose to pursue alternative dispute resolution or whether you are ordered to pursue it by a trial court after your case is filed, the benefits are many. Litigation is often necessary, but it is expensive, time consuming, and follows rules and schedules that may seem arbitrary. It may also be less than productive from the perspective of the involved parties. The subject of your lawsuit and sensitive information that would otherwise be private may become a matter of public record in court files and accessible by anyone who is curious. And, the results of litigation are uncertain. Even though your case may seem clear-cut to you, a judge or jury may not see it your way, or may even decide your case incorrectly. If that happens, you might be able to appeal to a higher court for review, but the grounds on which a court or jury's decision may be overturned are limited. And, whether you win or lose, you will have invested significant effort, time, and money in the lawsuit, and you will have given up some measure of privacy and confidentiality about the subject of the dispute.
Alternative dispute resolution, whether through mediation, arbitration, or another form of dispute resolution, provides you a measure of control over the investment you make in the dispute, the manner in which your dispute is resolved, and the privacy of your information.
Alternative dispute resolution is confidential. In mediation, anything you tell or show to the mediator is held in confidence, and will not be disclosed even to the opposing party or the court unless the parties specifically authorize it. This allows you to work openly and frankly with your mediator toward the goal of resolution without trial. In arbitration, which more closely resembles a trial, confidentiality may not be as complete and, in most cases, disclosures made to the arbitrator are shared with the opposing party. Nevertheless, your arbitration agreement can control the disclosure of information to each other and to third parties, including a referring court. Findings, evidence, and the fact of the dispute may be protected through carefully crafted ADR agreements. In addition to acting as an ADR neutral, Ms. Hendley can assist you in drafting appropriate ADR contractual provisions.
Although the parties are responsible for paying the fees of the neutral, alternative dispute resolution can save expense for the parties because it can be used before expensive discovery proceedings are undertaken (or to limit discovery), and it can greatly reduce the amount of expensive professional time devoted to the dispute. With few exceptions, the results of your alternative dispute resolution process are final, so you will not be faced with the potential expense of an appeal.
In litigation, last minute schedule changes and delays, often lengthy delays, are a not-uncommon result of the increasing caseloads and demands upon the courts. In alternative dispute resolution, you take the guesswork and delay out of the process. Ms. Hendley works closely with the parties to schedule sessions at a time and place that is convenient for the parties. Dispute resolution sessions can be held at the parties' facilities, at the "neutral territory" of Ms. Hendley's offices, or in another location that works for the parties. Once scheduled, you can be assured that your time will not be changed unless the parties request the change.