Alternative Dispute Resolution FAQ’s
These materials are for informational purposes only. They should not be construed as legal advice. This information is not intended to replace the assistance of an attorney in any particular situation. It is not intended to, and does not, create an attorney-client relationship.
What is Alternative Dispute Resolution?
Alternative Dispute Resolution is also known as ADR. It may be one of a number of different tools used by parties to help them settle their disputes without having to go to court. Mediation is one of the more widely known forms of ADR. Other alternative dispute resolution methods include negotiations, settlement conferences, and arbitration. Our attorneys have participated in continuing legal education programs to hone their mediation techniques and their negotiation skills. Forrest has completed basic and advanced arbitration courses offered by the American Arbitration Association. In addition to acting as an advocate, he also serves as an arbitrator.
Will my case have to be tried before a judge to be resolved?
No. Over 90% of all cases settle before trial. In most situations, the parties will be more satisfied if a mutually agreeable settlement can be reached as opposed to receiving a decision from an independent third party (the judge, jury or a referee/hearing officer for an administrative agency), who does not know either party and has no interest in their financial affairs.
What methods are available to settle my case?
The most common methods are settlement negotiations with the adverse party or their insurance company or through negotiations between the lawyers for the parties, and mediation. The Court/Administrative Agency will encourage you to use your best effort at settling your case. There may be an opportunity for a settlement conference with a trial judge or a private mediator in advance of the trial/hearing date in order to help the settlement process along.
What are the benefits of ADR?
ADR may save time and money. ADR also relieves court congestion and increases compliance with decisions rendered. ADR gives parties more flexibility and allows parties to avoid uncertainty of litigation. ADR helps preserve relationships, allows venting of feelings and opinions and helps people realistically assess their case.
What is mediation?
Mediation is the process in which a neutral third party (a mediator) assists the parties to a dispute to come to an agreement. Mediators are usually highly skilled, and highly trained in the process of mediation.
The Mediator’s role is to assist the negotiations by helping to establish the ground rules for the discussions and by promoting clear communication. The mediator will remain neutral and does not make a decision for the parties.
How do we get to mediation?
Mediation can occur by agreement of the parties, or by either party making a motion to the Court/Industrial Commission to order mediation. In certain circumstances the Court/Industrial Commission may order mediation on its own. There are costs involved in mediation and the costs are usually shared by the parties in civil cases. The Idaho Industrial Commission has its own trained mediators and their services are available without incurring a fee.
What happens when an agreement is made in mediation?
Once a tentative agreement is reached, the mediator makes sure all parties understand the terms of this agreement. One way this may be accomplished is by having the parties restate the agreement in their own words. The essence of the agreement is then generally documented in writing by an attorney.
Is mediation voluntary?
Mediation is usually voluntary although participation is sometimes mandated by contract or by the court. Settlement, however, can never be mandated. When settlement is reached, studies show that mediated agreements are more likely to be complied with than decisions imposed by arbitrators or judges. This success may be because the parties take an active role in the decision-making process.
Do I need an attorney for mediation?
Attorneys generally attend mediation sessions with their clients. If one side is represented by counsel, the opposing side most certainly should be represented; nothing is served in mediation if one of the parties feels they will be taken advantage of in the process.
What is arbitration?
Arbitration is the process by which an experienced legal professional hears evidence on a dispute and makes a ruling. An attorney or person with special expertise usually assumes the role of the arbitrator. The arbitrator makes a decision that is usually binding upon the parties but may be appealed under very limited circumstances.
Are there different forms of arbitration?
Arbitration is usually voluntary, which means the parties use it by choice as a means of attempting to resolve their dispute. Arbitration can also be either binding or non-binding. Binding arbitration is final and generally may be appealed only in very limited circumstances in Idaho. One benefit of arbitration is that it can be private. It is often based on a contractual agreement to resolve disputes by arbitration.
Do I need an attorney for arbitration?
Except in extraordinary circumstances the answer to this question is an unqualified – YES! An arbitration is virtually the same as a trial in a civil case. You do not want to go to trial without an experienced advocate acting on your behalf.
What happens in arbitration?
The arbitrator initiates the hearing by swearing in the parties and witnesses who will testify. The parties then may give opening arguments and present both documentary and testimonial evidence. The attorneys are allowed to question witnesses and the arbitrator may ask questions if necessary. Rebuttal questions are also allowed.
Is arbitration confidential?
Arbitration hearings, unlike trials, are not open to the public. Everything discussed in the context of the hearing is confidential and any matters disclosed often are not discoverable in future proceedings.
What is AAA?
The American Arbitration Association is a private, non-profit organization that provides procedures for parties to follow in private arbitrations. It also maintains a list of qualified arbitrators with knowledge in specific areas. Although the AAA does nothing to render or enforce arbitration awards, it will assist in the logistics of arbitration hearings by, among other things, providing rules for use in the proceedings. Forrest Goodrum has completed advanced training courses for arbitrators offered by the AAA.