Questions About Alternative Dispute Resolution
What is Alternative Dispute Resolution or ADR?
I am interested in ADR, but the other side is not; what can I do?
Do I have to participate in ADR, either before or after filing suit in court?
Should I be represented by an attorney at or during ADR sessions or proceedings?
When should I attempt ADR to resolve my dispute?
If ADR fails, what recourse do I have to resolve my case?
How can an attorney assist me in selecting which type of ADR is appropriate for my case and in the ADR itself?
Q: What is Alternative Dispute Resolution or ADR?
A: Alternative Dispute Resolution or ADR has many forms, such as:
- Mediation, with or without attorneys for the parties
- Collaborative Law, both in General Disputes and Separation, Divorce, and Family Law
- Arbitration, or ADR, is different from litigation.
In litigation, the parties are adversaries and a judge makes the final decision for the parties. However, in Mediation and Collaborative Law, the parties work together to decide themselves how best to resolve their situation to suit everyone’s needs. ADR is a “win-win” process, whereas litigation is “win-lose”. Arbitration, on the other hand, is similar to litigation in that each party presents its side to a neutral third party, the arbitrator, who will decide the outcome of the dispute, but it is an alternative to formal litigation and typically provides a faster resolution and is much less expensive than a court proceeding. The attorneys of Andalman & Flynn are experienced in serving as mediators, as well as representing clients in ADR and arbitration proceedings.
Q: I am interested in ADR, but the other side is not; what can I do?
A: ADR, with the exception of arbitration, is usually a voluntary process, so you cannot force the other side to participate in mediation or collaborative law to resolve your conflict. In addition, ADR relies on cooperation and negotiation for its success. Therefore, if one party refuses, litigation may be the only answer to move toward a resolution. Arbitration is generally mandatory, under statute, regulation, or contract.
On the other hand, if suit is filed, the court frequently will order the parties to participate in Mediation or other form of ADR with a court-appointed mediator or facilitator. As well, the parties may elect to use ADR at any point in their court case before a judge’s or master’s decision issues.
Q: Do I have to participate in ADR, either before or after filing suit in court?
A: Typically, ADR is a choice made by the parties to attempt to resolve their dispute outside of the court process and without the ongoing expense of litigation. However, arbitration is generally required under statute, regulation, or the parties’ contract. Likewise, ADR may be required under your divorce and custody agreement as a first step toward dispute resolution, before filing suit.
In addition, both state and federal courts often order mediation with a court-appointed mediator or facilitator because the courts find that, when Mediation is attempted, most cases settle before trial. This is because the parties know their situation best and, therefore, can generally find a mutually-acceptable resolution, particularly when the alternative is to turn over all decision-making to a judge.
Q: Should I be represented by an attorney at or during ADR sessions or proceedings?
A: Yes, and in certain instances, you may be required to have the representation of a trained professional, for example during collaborative law sessions. However, in mediation, it is often up to the parties whether or not to include their attorneys in the mediation session, and in some court-ordered mediation the attorneys may not be present. It is important to have the representation of an attorney before, during, and after an agreement is reached, to advise you on your rights and to review the terms of any settlement before signing. In addition, arbitration is often a required first step in the dispute resolution process (whereas mediation and collaborative law are generally voluntary), therefore it is important to have the representation of an attorney at the earliest stages of your case to protect your rights and interests, especially in the event of an appeal. The attorneys at Andalman & Flynn have the experience and training to represent you effectively during all stages of mediation, in the collaborative law process, and in arbitration proceedings, as well as serving as the neutral mediator in your mediation sessions.
For serious driving violations in Maryland, you must appear in court, and you do not have the option of avoiding court by paying the fine. You will receive a summons in the mail notifying you of the date, time, and location of the trial. If you then fail to appear in court when summoned, the judge will issue a warrant for your arrest.
Q: When should I attempt ADR to resolve my dispute?
A: Except for arbitration, ADR can be initiated at any stage of a dispute – whether suit has been filed or not. Mediation can be attempted any time before a judge or master issues a decision. The collaborative law process is generally begun before suit is filed because the collaborative law attorneys cannot represent their respective clients in litigation and new, separate attorneys must be retained. However, if the parties have already filed suit, depending upon the existing court deadlines and the nature of the dispute, the parties may be able to stay the court proceedings and seek a collaborative law resolution. Early attempts at ADR usually bring about a faster, less expensive resolution. Once suit is filed, there are court deadlines that must be complied with in most instances, regardless of any pending ADR between the parties.
Q: If ADR fails, what recourse do I have to resolve my case?
A: In collaborative law, before the process can begin, the parties are required to commit, in writing to resolving their conflict in a written agreement. If the collaborative law process fails, the parties must retain new counsel to file suit in court, which is a powerful motivator for success. Either party may file suit in court if the collaborative law process is unsuccessful. If mediation fails, either party may file in court, and if suit is already pending, it generally continues uninterrupted. If you are dissatisfied with the arbitration decision, you may have the right to an appeal. Each arbitration matter is unique because of the many different statutes, regulations and contracts that require Arbitration. If you are involved in arbitration, it is best that you seek the advice of an experienced arbitration attorney who can explain the potential consequences and the appeals process.
Q: How can an attorney assist me in selecting which type of ADR is appropriate for my case and in the ADR itself?
A: The best way to determine which type of ADR is best for you is to meet with an attorney and describe fully your circumstances and goals, and to discuss all of the pros and cons of each of the various types of ADR.
If you decide to pursue ADR, it is very important that you work closely with an attorney to strategize the presentation of your circumstances, and to receive advice on the viability of your claim or defense. Please contact Andalman & Flynn for an ADR consultation.