Alex S. Polsky - Mediation and Alternative Dispute Resolution Services -- Distinguished Mediators

Alexander S. Polsky, Esq.

What is ADR?

ADR or, Alternative Dispute Resolution, consists of a number of methods to avoid formal trial and/or avoid the traditional litigation method of dispute resolution altogether. To understand why it works, one must first have a fundamental understanding of its various styles.

In one sense, a mediation is like a voluntary settlement conference. A key difference is that the parties select the mediator and, generally, the mediator does not place an evaluation on the matter in dispute.

In mediation, the parties agree to take part in a structured discussion with an agreed to neutral expert skilled in the area of facilitation of dispute resolution. The sessions are usually informal. The parties indicate the case, from their points of view. Thereafter, the mediator engages in separate discussion with the parties designed to privately expose the downside in their individual cases. This facilitates recognition of strengths, weaknesses and costs. By exposing each party to the true litigation risks, including costs, settlement ranges then to emerge. The mediator then works to close the gap, and produce the resolution. The mediator probes "below the line" for hidden issues or emotional situations which must be addressed to promote resolution.

Mediation works because it brings the parties to the table, educates them to the real risks of litigation, and permits the mediator to work confidentially, behind the scenes, to bring about resolution.

Key advantage: The power remains with the parties. They must agree to the resolution.

HOW IS ADR DIFFERENT THAN ARBITRATION

Is arbitration ADR? Court ordered arbitration, which is pursuant to Code and non-binding is technically not a form of alternative dispute resolution. Why? Because it provided for by the same rules that move the case to trial. The parties have not selected it, the court has imposed it.

Arbitration works because it streamlines or avoids the litigation process, provides for a final result, and significantly reduces the costs associated with preparing and presenting a case in the civil trial court. Arbitration may be as formal or informal as the parties elect. An informal arbitration may be conducted by the parties themselves, or with legal representation. Example, claims adjusters frequently present their own cases in arbitration. They bring the reports, and argue their evaluation.

Arbitration is litigatious in its nature. It breeds a combative environment which tends to minimize the liklihood of an early resolution to a matter. An arbitration often subjects parties to similar rules and protocols of a courtroom environment.

Key Disadvantage: The power remains with a third party - the arbitrator.

ADR has been a mutually reinforcing success story for litigants, counsel and the courts. It provides an expedited dispute resolution format, preserves relationships where appropriate, reduces cost and removes litigation risk. It is an element of case preparation that counsel should discuss with the client at the retainer stage, and considered as part of an overall dispute resolution format.

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