"The courts of this country should not be the places where the resolution of disputes begin. They should be the places where disputes end- after alternative methods of resolving disputes have been considered and tried." Justice Sandra Day O'Connor
So, you say you want a revolution? Well it's arrived. Sure, lawyers, judges and juries still try cases; that is more or less as it should be. Of course, depositions still get taken, motions still get filed, and the courtroom looks pretty much the way it has for generations. The last decade has altered, dramatically, the manner and technique for the resolution of disputes.
What is Alternative Dispute Resolution?
Alternative Dispute Resolution (ADR) refers to alternative ways for resolving disputes as opposed to going to trial. ADR offers a variety of techniques to assist disputants in arriving at resolutions which are more expeditious, less expensive and, consequently, far less draining from an emotional, psychological and economical point of view for the participants. The following methods of ADR are the most commonly known forms, but they are not the only ones available.
Mediation is a process in which a neutral person, agreeable to the disputing parties, acts as a facilitator to their negotiations and assists them in arriving at their own mutually-acceptable solution. Mediation may occur before the litigation has commenced or at any time before trial.
There are many different mediation techniques or styles but two of the most common are the facilitative and evaluative styles. The main difference between the two is that in the evaluative style the mediator is much more actively involved in getting the case settled. He/she gives suggestions on how to settle the dispute and will often evaluate the case for the parties. In a facilitative role the mediator will concentrate on getting the parties to communicate with each other in order to come up with their own solutions to their dispute. It is important to note that in practice many mediators blend the two styles and develop their own.
Arbitration is probably the most well known form of ADR. In arbitration a neutral third party or parties act(s) as an adjudicator or decision-maker on a case. This process is more informal than a normal trial. It is frequently held in the office of the arbitrator, generally takes only a couple of hours, and results in a decision that may be binding or non-binding.
In court-connected arbitration in Pima County, any case in which the amount in controversy is less than $30,000 is sent to arbitration. The hearing takes place in front of an attorney who has at least five years of legal experience. The arbitrator is chosen from a panel of three potential arbitrators; the parties each get to strike one person and the remaining individual is the arbitrator. A party unhappy with the decision of the arbitrator may appeal. The appeal involves a court or jury trial in Superior Court. However, there are strict penalties imposed if the appealing party does not obtain a result better than that obtained in the arbitration.
A settlement conference is similar in many ways to evaluative mediation. A settlement conference is generally held by a judge shortly before a scheduled trial. The judge, as a neutral third party, will try to assist parties in settling their dispute before the trial. Settlement conferences can save litigants both time and money. Individuals who are involved in a lawsuit may request a settlement conference from a judge after a trial date has been set.
This procedure is directed at helping individuals involved in a dispute to narrow the issues over which they disagree to the ones that are really pertinent to their case. The parties and their attorneys meet with a neutral expert who guides them in assessing the merits of their case and then gives them a range of monetary damages that would probably be the decision if they went to trial. Neutral evaluation is helpful to people who have large, complex cases. The evaluator has expertise in the subject matter of the case and can act as a settlement facilitator if the parties choose. Individuals, lawyers and judges may suggest the use of a neutral evaluator as a means of moving the case toward settlement.
Summary Jury Trial
This procedure uses jurors to provide an advisory opinion to parties in a lawsuit. There are many different types of summary jury trials, but in a typical one the jurors hear an abbreviated trial in which each side is given a limited period of time to present their case. The number of witnesses is limited as well as the time allowed to the attorneys for their arguments. The jurors will deliberate after both sides have presented their case and then the jury will render a verdict. Summary jury trials, like arbitrations, can be binding or non-binding. The advantage of a summary jury trial as opposed to a trial is that a summary jury trial can be done in a day, instead of considerably longer. This results in great savings to the parties and the Court.
Another advantage of summary jury trials is the flexibility afforded. Parties can agree on how the summary jury trial will be performed. For example, the parties may choose to have a binding summary jury trial in which a high and low verdict is agreed to by the parties and not revealed to the jury. If the jury gives a verdict which is below the low agreed upon by the parties, the plaintiff will get the agreed-upon low number; if the verdict is above the agreed-upon high number, the plaintiff receives the agreed-upon high number. If the jury comes to a number between the agreed-upon high and low numbers, that number will be binding on the parties. Summary jury trials are excellent vehicles for resolving cases in a cost effective manner with input from an actual jury.