Alternative dispute resolution, or “ADR,” refers to methods used to facilitate resolution between sparring parties to a lawsuit short of trial by utilizing some form of third-party intermediary. It is a term used to fit a broad range of tools into one toolbox, all of which are designed to reduce the costs of litigation including legal fees, court costs, judicial resources, and a litigants’ own time. This article is intended to provide a brief overview of the various forms of ADR used in Wisconsin.
Types of Alternative Dispute Resolution:
One of the most basic forms of ADR, and one that is often overlooked, is simple negotiation. Negotiation between two opposing sides to a lawsuit is so intrinsic to the process that many people forget to include it when discussing ADR. Negotiation typically occurs between attorneys representing the respective parties to a lawsuit. In a successful negotiation, the attorneys themselves are able to operate as the intermediaries between the parties who, for whatever reason, have come to an impasse and can no longer work together to resolve a matter. Through negotiation, the attorneys will advocate the legal and factual aspects of the case that weigh in their client’s favor, include consideration of matters outside of the case itself, and determine what possible resolutions to a matter are available short of trial. For an attorney to successfully negotiate on his or her client’s behalf, it is essential for them to understand all of issues directly and indirectly related to the litigation as well as their client’s underlying goals.
Another common form of ADR, and one that is more formal than simple negotiation but still maintains flexibility, is called “mediation.” Mediation, as its name suggests, is a form of ADR whereby the litigating parties meet with a neutral third-party who will “mediate” the issue. Each mediation can be tailored to fit the needs of a particular case. Oftentimes the parties will submit memos to the mediator prior to a mediation conference to set forth the parties’ respective positions. At the mediation conference, the mediator tries to break the log-jam of communication between the parties that has prevented the matter from settling to that point. Should the mediation result in a settlement, the parties will be bound by that settlement in the future.
Arbitration is a form of ADR that includes many of the formalities of trial. An arbitration itself is held before an arbitrator or panel of arbitrators selected by the litigants and takes the form of a hearing wherein the parties present evidence to the arbitrator(s). Although arbitration is relatively formal in comparison with simple negotiation and mediation, many rules, including the rules of evidence, are relaxed in an arbitration setting. After arbitration concludes the arbitrator(s) render a decision called an “award”. This award is binding on the parties subject to the review of the court overseeing the case.
Is negotiation, mediation or arbitration right for your case?
Negotiation, mediation, and arbitration are three of the most commonly used forms of ADR used in Wisconsin, although other forms of ADR do exist. The needs of each litigant are different, and every case involves its own challenges. Whether a particular form of ADR is appropriate in a given case, or any form at all, will be subject to the goals and intentions of each party, their attorney, and the directives of the court.
Attorney Terry J. Gerbers, with 25 years of experience is available for mediation and arbitration services involving business and real estate disputes. If you are looking for a cost effective and timely way to resolve your dispute, mediation and arbitration is a great alternative to costly court proceedings. This process is great for parties who are looking to keep information confidential, and for those who want to have more control over the outcome of the dispute. If you would like to use Attorney Terry J. Gerbers for mediation or arbitration services within the Green Bay or Appleton area, please call our office today: (920) 499-5700.