Alternative Dispute Resolution (ADR) involves dispute resolution processes and techniques that serve as a means for disagreeing parties to come to an agreement short of litigation. ADR essentially is an alternative to a formal court hearing or trial. It is a collective term to describe the many ways parties can settle disputes with the help of a third party.
The following is a brief summary description of some of the ADR services available:
A mediator assists the parties to negotiate their own settlement. In essence, mediation is negotiation facilitated by a third party. The process is private, voluntary and informal. The process often takes no more than one day. While the mediator provides an environment in which the parties can communicate constructively to facilitate a settlement, the mediator has no power to impose a settlement on any party. In some cases, however, mediators may be asked to express a view on certain aspects of the dispute or to opine on what might be a fair or reasonable settlement, but this is done only to assist the parties in achieving a settlement. Mediations are also generally confidential and communications, negotiations or settlement discussions made in the course of the mediation remain confidential.
Arbitration provides a legal forum for the resolution of disputes that may be held outside the court system. The parties to a dispute refer it to one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal”), by whose decision (the “award”) they agree to be bound. Unlike mediation, the third-party arbitrator has the power to make a decision. Arbitration differs from trial, however, as the parties may select an arbitrator of their own choosing and the rules of evidence and appeal may not apply as they do when a matter is decided by trial. Arbitration may be managed directly by the parties under a contract or by informal agreement. Arbitrations can also be more cost-effective than trial and provide a resolution to the dispute in a more timely manner.
Discovery Referees are not just for the complex litigation cases. Any case can generate expensive and time-consuming discovery disputes, abuses and delays. In fact, the need and benefit of a Referee may be greater in a smaller case where the client or lawyer needs to conserve expenses. Properly used, the cost savings of a Discovery Referee should far exceed the fees.
Early use of a Discovery Referee can save time and money. It can assure that all parties obtain prompt, consistent, and knowledgeable guidance from one experienced in the field. If a discovery dispute is anticipated, the parties may stipulate to the use of a Discovery Referee to be on call should any dispute arise during the written discovery phase of the case, depositions or other pre-trial matters, including discovery of experts. Often, the mere retention of a Referee will deter abuses. The use of a Discovery Referee to assist in managing discovery from the outset of the case may avoid the expenses and delays of unnecessary motions and court appearances. If judicial guidance or decision is required, having a Referee in place assures prompt access, consultation and decision by the court.
The role of the Special Master is to supervise the parties and manage the litigation under the order of the court to insure compliance with the court order and to report to the court on the progress of the case in a timely matter. Special Masters are often used in construction defect litigation and may preside over the discovery and pre-trial processes and motions in the case and may act to facilitate the eventual settlement of the case. Special Masters are generally assigned to a case pursuant to agreement of the parties or through court appointment.