Why Alternative Dispute Resolution Is Growing in Popularity
Parties in legal matters ranging from divorce and child custody to business contracts are increasingly opting for alternative dispute resolution to settle their differences. Proponents of this model note that conflicts can be settled more quickly and amicably — especially important when children are involved — but also in a way that gives both parties more control over the outcome, and at far less cost.A judgment of the court — whether on a divorce settlement, child custody, breach of contract, or ownership of a business — is final. And that can be a frightening thought for parties on both sides of a dispute.
“You’re handing these issues over to a third party who, in the best of circumstances, is going to have a day or two in trial to understand all the aspects of a business that may have been going on for 100 years or a marriage that has gone on for 30 years,” said Carla Newton, an attorney with Robinson Donovan, P.C. in Springfield.
“No matter how studious or attentive or learned the judge may be,” she added, “he doesn’t understand as much as the parties themselves about all the details and nuances of the needs of a child or the management of a business. When you use alternative dispute resolution, you’re making your own determination how the issues are going to be resolved.”
Alternative dispute resolution, or ADR, is a growing niche in the legal world that bypasses litigation before a judge and instead encourages parties to work out issues themselves, typically with the help of one or more neutral parties.
“In the past few years, it’s grown tremendously,” said Michael Grilli, an attorney with Springfield-based Bacon Wilson, P.C. “It first gained acceptance because of the potential cost savings, as opposed to having to litigate things in a traditional sense. And it’s a cleaner way to do things, especially with issues involving children. People acknowledge that, although their relationship is broken, they still need to maintain some sort of civility to parent their children together to some extent.”
But Grilli also echoed Newton’s point about the desire for control on both sides of the table.
“When you take things in front of a judge, the judge is going to make a lifetime, life-altering decision for you and your children,” he said. “In alternative dispute resolution, you own the outcome because it’s something you arrive at.”
In this issue, BusinessWest examines the various types of ADR and the benefits they provide to opposing parties who, in many cases, just want to stop fighting and work it out.
Common Goals
Alternative dispute resolution can take several forms. In mediation, a neutral professional guides the discussion, with or without counsel present, and helps the parties reach consensus on all issues. However, they cannot force any resolution; the opposite is true if the parties choose arbitration, in which a mutually agreed-upon third party is authorized to make binding decisions.
Meanwhile, collaborative law involves both parties, their attorneys, and one or more experts in various fields, from finance to behavioral health, in a group effort to reach consensus.
“The attorneys are still advocating for their clients, but also working as a team to resolve the issue in a way that involves the expertise of everyone at the table,” Newton said, adding that this is a particularly beneficial model for dealing with issues of business law. “You have more time to explore all the issues, and there’s a transparency of information that’s crucial. All the information is on the table and shared in a way that people can make thoughtful and meaningful decisions about resources, income, and property distribution.”
Neutral experts weighing in on, say, the value of a business or piece of real estate “reduces the cost of having my expert go up against your expert,” she added. “It doesn’t mean that everyone always agrees on the valuation, but it does provide a more open forum to explore these questions and come to a resolution in terms of how that asset is going to be valued.”
A fourth model of ADR, conciliation, is similar to mediation but focuses on compromise and concessions to reach resolutions with a minimum of rancor. Grilli has been on both sides of ADR cases, as an attorney representing one of the parties, and as a conciliator working for both.
“We can’t force the outcome on anyone,” he said of his role as a conciliator. “They don’t have to trust us with their stories, and they don’t have to litigate their case with us. It’s more of a dialogue than a litigation.
“I encourage people to use it,” he continued. “Very often, in cases I have of a contentious nature, I’ll ask judges to make referrals to use alternative dispute resolution. I think the people appreciate it and get the sense that I’m pursuing all avenues to solve their case. And the other attorneys like it; at least in the family-law field, they’re getting very experienced mediators and conciliators who know what they’re doing. I’ve had a lot of good experiences with it.”
A good conciliator, he explained, can examine a case and tell both parties how a judge would likely rule on certain matters. “It opens their eyes. They think, ‘well, doesn’t it make more sense to see if we can reach some sort of settlement that mirrors that, with less money, time, and pain?’”
Cut to the Chase
An aversion to spending years in legal proceedings, with steadily escalating bills, is, in fact, one of the driving factors in the increasing popularity of ADR, Grilli noted. Take, for example, a damage claim in a personal-injury case — say, an automobile rear-ending accident — in which liability is not an issue.
“Instead of a long, drawn-out process for damages, you can submit the medical bills to an arbitrator or mediator, and the case expenses are significantly less, and cases are resolved more quickly,” he said.
“It’s all about cost and time. You could be looking at a couple of years after filing a case to get before a judge, as opposed to a couple of months, not to mention that much more money spent litigating. Claimants think, ‘I don’t want to wait two years to have my case resolved.’”
Overloaded dockets have lent a new appeal to ADR, Newton said.
“Our courts are very crowded, and there are limitations on the amount of personnel and resources available to move cases through the court process,” she told BusinessWest. But other factors take into account the long-term emotional health of the parties, especially in divorce and custody disputes.
“People are becoming more sensitive to the fact that there is a benefit to being able to resolve family matters in a way that preserves what can be preserved of these family relationships, especially in families with children, where the parties are going to be connected for the rest of their lives through the children,” Newton said.
“They want to maintain a respectful communication with the other party,” she added. “They want to sustain that after the proceeding is over, and many people feel they have a better chance of doing that through an alternative dispute process as opposed to a situation where they’re resolving arguments by testifying against the other person.”
Grilli agreed. “I’ve heard a lot of judges say they consider it a more child-centered way to handle things, as long as you can get everybody on the same page,” he said. “If we want the end result that is best for the child, then people should be able to put their own selfish solutions aside and work for the best interest of the child.”
Not for Everyone?
Brad Spangler, a former research assistant at the University of Colorado Conflict Research Consortium, notes, in an online article for the university’s Beyond Intractability Project, that ADR has some potential drawbacks if used inappropriately.
“Some critics have concerns about the legitimacy of ADR outcomes, charging that ADR provides ‘second-class justice,’” he writes. “It is argued that people who cannot afford to go to court are those most likely to use ADR procedures. As a result, these people are less likely to truly ‘win’ a case because of the cooperative nature of ADR.
In addition, Spangler notes, “compromise can be a good way to settle some disputes, but it is not appropriate for others. In serious justice conflicts and cases of intolerable moral difference, compromise is simply not an option because the issues mean too much to the disputants.”
Another concern is the private nature of ADR settlements, which are off the public record and not exposed to public scrutiny. “This could be cause for concern in some cases. For example, using ADR to settle out of court could allow a company to resolve many instances of a defective product harming consumers, without the issue getting any public exposure. On the other hand, a court ruling could force the company to fix all problems associated with the bad product or even to remove it from the market.”
On the other hand, that privacy aspect is an attractive quality of ADR when dealing with a family matter or a business issue that affects only the individuals in dispute, Newton said.
“It’s starting to gain more acceptance in the areas of business disputes, home repairs, and contract litigation,” Grilli added. “I think what makes it attractive to people are the time savings, the cost savings, and the sense that you’re a little more actively involved in the process than you would be with traditional litigation.”
As for those family-law matters often marked by bitterness and resentment, Newton stressed that no alternative to litigation can totally suppress the bad feelings that led the parties to court. But maintaining a sense of control over the proceedings, she noted, can significantly reduce their level of anxiety.
“The process itself is innately difficult,” she said. “But in the case of a custody dispute, it’s a given that both parents love the child dearly, and you’re asking someone who doesn’t know them at all to make a decision that is going to impact them for the rest of their lives. That’s an overwhelming responsibility for any judge.”
Individuals who opt instead for alternative dispute resolution, on the other hand, maintain more control over the situation even as they trust the other party with an equal measure of control, she noted. “They’re acknowledging that they, who love this child dearly, can make this decision. And the vast majority of people do have the ability to reach these agreements and, with the right guidance, understand that not every divorce resolution has to be one where someone wins and someone loses.”
At what is often the most difficult point in two people’s lives, that’s a goal worth fighting for.
Joseph Bednar can be reached at
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