What is ADR?
by Jacqui Brauman
Alternative dispute resolution (ADR) is a phrase that gets tossed around in the legal industry, but most people don’t know what it means. ADR is an alternative to going to court and takes many forms, including negotiation or mediation.
Whether or not you’ve tried alternative dispute resolution (ADR) before filing in court, you’ll still have to go through that court-ordered process. Depending on where the ADR is taking place and what processes are involved, the experience can be different than what you get from private ADR. This blog talks about private ADR, because it can be really important before even seeing a lawyer.
How do you start an ADR?
There are a number of dispute resolution options available. An ombudsman is an independent third party who listens to both sides of an argument and helps resolve disputes. An ombudsman does have a free dispute or complaint resolution process so that can be a pathway. Similarly, your state Consumer Affairs office and your local Dispute Settlement Center have free or low-cost ways to resolve disputes as well. When deciding how to resolve your dispute, it’s worth considering these options before seeing a lawyer.
Then you can choose to do these other processes with or without a lawyer, and that is mediation or arbitration. Conciliation is also used synonymously with mediation, and you can do these processes with or without a lawyer. I recommend doing them as early on in the process as possible—preferably without an attorney present because attorneys involved in the process can sometimes make it less effective.
How do you find a mediator?
Not all lawyers are qualified mediators, and in fact, many mediators are actually not lawyers at all. They’ve come from other industries, counseling, from working in the courts or in public service to all sorts of different backgrounds and they’ve just decided they think that the mediation skill is a really good skill to have.
Where do you start? You can start by going to the Mediation Institute where there’s a whole list of mediators—both lawyers and non-lawyers—who might be right for your situation.
There’s a lot of different ways to mediate, so you might want to do some research on that. Most mediations are done by phone these days. There are a few centers that have online mediation processes. The mediation institutes are a great place to start. Another good resource is Interact Support, which offers low-cost mediations and also has special programs for separating couples.
One thing I want to emphasize is that if you have a dispute and you want to find a way out of it, please try mediation first.
While mediation is a process where you and the other parties in a dispute still control the outcome and come to an agreement, arbitration is different. With arbitration, a third party—an arbitrator—makes a decision on the dispute. The arbitrator might be someone who has experience in the building industry, or might be an engineer or someone with technical expertise.
Arbitration is a good way to settle disputes when you need a third party to make a decision about something technical and complex. Most of the time, you write out your arguments, and then the other person writes out theirs. Then, the arbitrator makes a decision, which they send in writing to both of you.
There’s also another newer type of ADR that involves lawyers, but it has more structure to it than mediation does. Lawyers who want to do this kind of work have to be specially trained in collaborative law and they’re called collaborative lawyers. There aren’t very many of them around, so if you want a collaborative lawyers, you may need to search for one.
If you want to do collaborative work, you might have three or four meetings over the course of a few months. If you want it resolved in a couple of months, you would have fairly regular meetings, or it might take four to six months to resolve with mediations every six weeks or so.
The collaborative process involves pulling together a collaborative team. Each party has a lawyer because if you are uncomfortable and you do want legal representation, this is the way to do that. But the team also includes a communication coach who is like the mediator. They will also meet with you individually to help you work out how to say certain things that need to be said, and about how to manage your own emotional responses to what the other party might say. In that collaborative team is also a financial independent, so not someone who is exclusively advising you, but it is someone who is advising the whole team, including advising the lawyers. In cases that we are putting forward different options to resolve the dispute, the financial independent can look at each option independently and advise everyone about what the outcomes of each option would be, so it is a really interesting newer form of process.
If you want to find a collaborative practitioner in Victoria, you can go to the association website that is VACP, the Victorian Association of Collaborative Practitioners. It’s only about 30 or 40 of us in Victoria that are collaboratively trained. It’s quite an interesting process in terms of learning how to work with someone over the long term. If it is a family dispute, if it is a dispute over children, if it is a family business dispute where, you know you have a long-term relationship that you need some way of working with this person, collaborative practice can help the two of you resolve a lot of things and learn how to deal with each other moving forward.
I hope this helps to explain a bit about the process and what to expect when it comes to ADR. And hopefully, you see the benefit of using ADR to resolve a dispute before letting it go to court. It’s worth noting that every situation, and every round of negotiation, is different.
If you’re interested in learning more, or if you would like to ask us any questions, feel free to visit the TBA ADR website, or simply give us a call and let us know how we can help you.
Jacqui Brauman is an NMAS Accredited Mediator, and a Collaborative Practitioner for Wills and Estates. She is trained in several alternative dispute resolution modalities, through Resolve Estate Law, the Mediation Institute, AACP, and College of Law.