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Alternative Dispute Resolution

Alternative Dispute Resolution (ADR) deals with dispute resolution processes and techniques that fall outside of the government judicial process. This service is for civil cases. In recent years ADR has gained widespread acceptance among both the general public and the legal profession. In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried. The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute. The use of ADR early in a case can result in the more efficient, cost-effective resolution of disputes with greater satisfaction to the parties. A great majority of the civil cases, including marital dissolutions (divorces), filed in Minnesota state courts are settled by using ADR. Minnesota courts recognize the effectiveness of ADR as a tool for settling disputes. In response, the courts provide parties and their attorneys, if parties are represented, with ADR information when they file a civil case.

ADR is generally classified into at least four subtypes: negotiation, mediation, collaborative law, and arbitration. The salient features of each type are as follows:
  • In negotiation, participation is voluntary and there is no third party who facilitates the resolution process or imposes a resolution.
  • In mediation, there is a third party, a mediator, who facilitates the resolution process (and may even suggest a resolution, typically known as a "mediator's proposal"), but does not impose a resolution on the parties. In some countries (for example, the United Kingdom), ADR is synonymous with what is generally referred to as mediation in other countries.
  • In collaborative law or collaborative divorce, each party has an attorney who facilitates the resolution process within specifically contracted terms. The parties reach agreement with support of the attorneys (who are trained in the process) and mutually-agreed experts. No one imposes a resolution on the parties.
  • In arbitration, participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration. This is known as a 'Scott Avery Clause'. In recent years, the enforceability of arbitration clauses, particularly in the context of consumer agreements (e.g., credit card agreements), has drawn scrutiny from courts. Although parties may appeal arbitration outcomes to courts, such appeals face an exacting standard of review.
"Alternative" dispute resolution is usually considered to be alternative to litigation.

ADR can increasingly be conducted online or by using technology. This branch of dispute resolution is known as online dispute resolution (ODR). It should be noted, however, that ODR services can be provided by government entities, and as such may form part of the litigation process. Moreover, they can be provided on a global scale, where no effective domestic remedies are available to disputing parties, as in the case of the UDRP and domain name disputes. In this respect, ODR might not satisfy the "alternative" element of ADR.

If you are seeking to resolve a civil case without the expense and hassle of going to court and litigating, consider ADR. Landon Ascheman is a certified mediator and arbitrator and would be glad to help resolve your disputes. If you already have an arbitrator or mediator, Landon is also avaliable to serve as your counsel in the ADR process.