Alternative dispute resolution, once a cottage industry, enters the 21st century as a mature market force. "Alternative" is a misnomer, ADR has become an imperative. Mediation is a first, not a last, resort and is used to resolve disputes before a lawsuit is ever filed. Mediation and arbitration have joined litigation as routine options in the conflict-resolution spectrum.
In response, numerous provider firms and independent neutrals offer conflict-resolution services. Dozens of sitting judges are expected to retire this year, leaving the bench at a young age and viewing private conflict resolution as a full-time career. Lawyers are also involved, as bar associations and law schools teach litigators to mediate and arbitrate. Since conflict-resolution practitioners have yet to enact industry standards, neutrals are neither licensed nor regulated. How to pick the right one? Narrowing the selection criteria is the first step. The following questions assess case needs and help establish a profile of the ideal neutral:
Does the case require an arbitrator, a mediator or a referee?
If the case calls for arbitration, then judicial experience, a formal presence and practice in the legal specialty at issue are desirable. The arbitrator should have experience with civil procedure, a command of the rules of evidence and the strength and experience to apply them. The neutral should be able quickly to grasp the facts and issues and should be expert at evaluating cases. For example, he or she should be able to determine what constitutes reasonable and necessary medical treatment or the appropriate measure of lost profits.
If a mediator is called for, the first determination is facilitative vs. evaluative. Facilitative mediation defuses emotional issues such as sexual harassment, wrongful termination, partnership dissolution or catastrophic personal injury. It puts the parties at ease, allowing them to undergo a cathartic experience to resolve the dispute.
Evaluative mediation is useful when settlement demands are far apart and the parties need the authority of a settlement officer to bring them closer together, much like a settlement conference. The most successful mediators are those with a combination of facilitative and evaluative skills. Personality and style are critical for a successful settlement. Either type of mediator should have credibility, be a good listener, value cases accurately, possess subject-matter expertise and have undergone mediation training.
For a discovery referee, law-and-motion experience, tolerance for spending hours reading documents and the ability to make courageous rulings and bill fairly and accurately are required. A flexible calendar is necessary to call errant parties timely to appear and show cause if a deadline passes without compliance. In complex disputes, a discovery referee with strong management skills is necessary to keep the case on track.
Does the case require a retired judge or an attorney-neutral?
Both handle the same types of cases and proceedings and charge about the same, usually between $250 an hour and up to $6,000 a day. However, they may display significant differences in level of authority, point of view and experience.
Attorney-neutrals are facilitators and may be perceived as better at this style of mediation. Some clients prefer the stature of an experienced jurist, as judges are thought to have more knowledge of the law, they command respect and those with mediation training resolve cases quickly.
Does the case require an independent practitioner or an ADR-provider firm?
Increasing industry competition has forced some independents toward affiliation with provider firms, where many maintain independent practices in addition to their exclusive affiliations.
Independents can be hard to reach but are more likely to return calls personally. Independents have limited staff or a family member scheduling cases, a plus when trying to avoid bureaucracy. Independents bill and collect directly.
After selecting an independent, retaining the neutral through a provider firm should be a possibility. If opposing counsel has not agreed to the neutral or the process, a provider firm offers a neutral hearing location and a case manager who can assist in convening the case. This can mean the difference between getting the matter scheduled with the selected neutral or waiting for a trial date.
If no mediator or arbitrator has been selected, a relationship with a case administrator at a provider firm can help, because the availability of capable neutrals increases. Assessing attorney personalities and clients needs, then matching a neutral are the administrator's specialties. An administrator can establish agreement on the neutral and hearing format and assist in determining the conflict-resolution process best suites to resolving the case. The administrator has access to the calendars, resumes and settlement statistics of numerous retired judges and attorney-neutrals and can offer details about the case-conflict disclosures required by law for arbitration and discovery.
Also, firms offer a barrier between the hearing officer and the billing and collection processes.
What are some practical considerations?
Hourly rates, administrative fees, refund and cancellation policies, panelist availability and location are important considerations.
Often, ADR users have access through the court system to free services. However, if the case does not settle within the agreed-on time, court-appointed neutrals set their hourly rate and charge for the balance of the process. While many distinguished neutrals have served in court-administered conflict-resolution programs, often counsel has no familiarity with the names on the list and obtaining objective information about the hearing officer can be difficult.
If price is a consideration, an independent practitioner with lower overhead costs may not charge the administrative fees commonly found at provider firms, resulting in lower costs to the client, perhaps affecting the level of satisfaction in the cost-benefit continuum.
If timing is critical, choosing a provider firm with a number of qualified neutrals immediately available may work better than waiting for a popular court-appointed or independent neutrals. If a neutral hearing location is critical, provider firms offer private conference rooms.
Although the conflict-resolution industry will also find its niche in cyberspace, settling cases is about more than just numbers. Faceless mediation over the Internet may be quick and cost-effective, but it can be low in client satisfaction. Human interaction is usually the key to successful conflict resolution.
Article originally appeared in November 5, 1999 issue of VERDICTS AND SETTLEMENTS.