- October 26, 2020
Popular television dramas and the news of the day would have you believe that, when faced with a legal dispute, the only option is to take your opponent to court. On the contrary, while not as flashy as a courtroom battle, alternative dispute resolution (“ADR”) processes, such as mediation, arbitration and settlement conferences are great options that provide a host of advantages. These alternatives to litigation can save clients time, money and frustration, giving the parties more control over their fates and leading to better outcomes. Many of these benefits speak to the needs of our religious and not-for-profit clients, where the process of resolving disputes through negotiation, instead of an adversarial process, is consistent with their ethos and mission.
The three most common forms of ADR are mediation, arbitration and settlement conferences:
- In arbitration, a neutral person called an “arbitrator” hears arguments and evidence from both sides and issues a determination. Arbitration can be binding, where the parties agree to accept the arbitrator’s decision as final, or non-binding, where the parties are not bound by the arbitrator’s determination.
- In mediation, a neutral person called a “mediator” helps the parties try to reach a mutually agreeable resolution to the dispute. The mediator does not decide the case but facilitates communication between the parties so they can try to settle the dispute themselves.
- Settlement conferences are similar to mediation but frequently involve a neutral party with particular subject matter expertise relevant to the dispute. The neutral hears both sides of the case and conducts information assessment and negotiation sessions between the parties. Settlement conferences call also occur in litigated matters, where the parties have a pre-trial meeting to attempt to resolve the matter and avoid a trial.
ADR typically saves the parties time and money because disputes submitted to mediation or arbitration can often be resolved in a matter of months or less. In contrast, taking a lawsuit to trial can take years. ADR’s streamlined processes can allow the parties to save money they would have spent on court costs, as well as fees and expenses associated with discovery, motion practice, trial and appeals. It can also ease the burden on the parties’ internal resources by limiting, or avoiding altogether, document production and depositions. These savings help religious and not-for-profit organizations preserve their charitable resources.
Another important benefit of ADR is that the parties have more control over the process and its outcome. ADR can provide the parties with more latitude to tell their side of the story and is flexible and responsive to the individual needs of the parties involved. Increased communication between the parties can also be an important advantage when the parties want to preserve their relationship for the future. This flexibility allows religious and not-for-profit organizations to include a pastoral, compassionate dimension to their response to legal claims.
ADR also allows parties to avoid public filings or court appearances when confidentiality is desired by the parties. Many jurisdictions have specific legal provisions in place to protect the confidentiality of communications shared during the course of ADR. In Illinois, the Illinois Uniform Mediation Act provides certain rights and protections for the mediation process and the participating parties.
Finally, the current pandemic has not derailed ADR the way it has litigation, which has been hampered by court shutdowns and the difficulty (and at times, impossibility) of impaneling a jury. For example, mediations have proceeded apace, both virtually and in person.
In sum, ADR provides parties with a process to achieve a win-win solution tailored to the parties’ actual goals.