Correcting a Few Common Misconceptions: ADR can address more types of conflict than is commonly believed
Jane Beddall, The Connecticut Law Tribune
December 15, 2014
Some attorneys—and clients—are sophisticated users of alternative dispute resolution who have mastered all the options and nuances. Beyond those two groups are attorneys and clients whose understanding of ADR is on shakier ground, perhaps based on vague memories from law school, news items about sports or high-profile diplomatic efforts, casual conversations or one legal matter handled years ago.
Correcting a few misconceptions about ADR should help the attorney who has some grasp of it but struggles to explain its pros and cons to clients who have little knowledge of it. Attorneys who are themselves in the dark (and are also perhaps reluctant to admit they are and thus are inclined to give short shrift to the possibility of using ADR in a given case) should also gain a better sense of ADR and more confidence in considering its use to better serve their clients.
The most familiar misconception, held by many highly knowledgeable and astute clients—and attorneys—who aren’t involved regularly in ADR, is to conflate the two distinct processes of mediation and arbitration into one. In fact, although mediation and arbitration are both widely used processes that employ neutrals, they are quite different. In mediation, the mediator does not have the authority to decide the dispute or impose a resolution, but instead works with the parties to resolve the dispute in a manner that is mutually acceptable to them. In arbitration, parties agree that one or several people will make a decision (issue an award) about a dispute after receiving evidence and hearing arguments. These two ADR processes are not the only possibilities. Although mediation and arbitration are the most widely used ADR processes in Connecticut, other options are available, including collaborative processes, facilitated group decision making, restorative justice and early neutral evaluation.
The next common misconception is that ADR is still truly alternative. Connecticut’s own Harry Mazadoorian, a nationally recognized leading light in the study, promotion and practice of ADR, was instrumental in the 1993 creation of the American Bar Association’s Dispute Resolution Section. Note that even then, more than 20 years ago, experts in the field chose not to describe as “alternative” the various dispute resolution mechanisms that were becoming the predominant processes for resolving disputes. Nearly 10 years ago, the late U.S. District Judge Mark Kravitz published his frequently cited piece, “The Vanishing Trial: A Problem in Need of Solution?” Then, as now, only a small fraction of lawsuits filed proceeded all the way through to judgment.
A third popular misconception about ADR is that it can be used only in particular substantive areas or in certain situations. It is true that legislation may require parties to engage in a particular ADR process in specific circumstances. Also, a court may order parties to a lawsuit to use ADR. Obviously, divorce and custody matters are areas where mediation is frequently used; many people think of sports when they think of arbitration. Yet the use of ADR is not limited to the areas where it is required by law or in widespread application. Generally, parties to a conflict can enter an agreement to use an ADR process. Attorneys focused on fully understanding and serving their clients’ needs may find ADR to be especially well suited to a particular situation.
Fourth, it is not true that predispute contracts between parties can contain only arbitration clauses; mediation clauses can also be included. To date, contractual requirements to pursue arbitration if a dispute should arise have been more widely used—and, thus, more widely known—than mediation clauses. Although less common, a clause requiring parties to engage in mediation appears in some contracts. An escalating scale of processes—mediation followed by arbitration if the mediation does not reach agreement—is included in some contracts as a tailor-made approach to dispute resolution that the parties choose to commit themselves to follow. Occasionally, contracts contain only a mediation clause and not an arbitration clause.
Fifth, parties can agree to arbitration after a dispute has occurred, even if their original contract has no arbitration clause. A famous adage in the ADR realm is that “arbitration is a creature of contract.” As a rule, parties that are competent to enter into a contract can make an agreement to engage in arbitration. That agreement can occur as part of the original contract governing relations between the parties or at some later point. It is not too late to agree to use arbitration (or mediation) after the initial contract is signed. Relevant contract law and arbitration law will apply.
ADR can provide powerful options to attorneys and their clients, even those who do not use it on a regular basis.
Jane Beddall is the principal of Dovetail Resolutions LLC in New Haven, where her work focuses on family wealth mediation, business mediation and consulting.