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Alternative Dispute Resolution

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Alternative Dispute Resolution (ADR) is the use of methods such negotiated discussions, mediation, or mediation-arbitrations to resolve a dispute instead of litigation in the courts.

Litigation in the courts will always carry a measure of risk. While the parties may be convinced of a strong chance of success, it is ultimately up to the judge to decide an outcome. As such, the element of uncertainty is something that the parties must withstand throughout the litigation process right up to the day the decision is rendered by the judge.

To lessen the element of uncertainty, and in the right circumstances, our litigation team is well-versed in ADR procedures which allow the parties to craft their own solutions. Often times and used correctly, ADR procedures can reduce the time a dispute takes to be resolved, as well as have cost-saving benefits. Most importantly, the disputing parties come to a resolution that they contributed to in a meaningful way. ADR procedures are often less emotionally stressful on the parties.

Settlement Negotiations

Negotiation involves people in dispute communicating directly or through their lawyers, either by speaking or in writing, to try to reach an agreement. Negotiations may be used to resolve an already-existing problem or to lay the groundwork for a future relationship between the parties.

This form of ADR is the most flexible as it involves only those parties within the specific matter of dispute. The parties have the ability to shape the discussion path for their own needs, for example setting the agenda, selecting the venue and identifying the participants. Negotiation is also a voluntary process, and no-one is required to participate in the negotiations if they wish not to.

Mediation

Our team at FH&P Lawyers offer impartial mediation services to help parties reach a resolution to their dispute that is mutually acceptable. We also have experience representing parties in disputes in mediated settings. This method is more formal than simply having settlement negotiations, but the parties still control the discussions and path of the outcome.

There are various methods of mediation depending on the parties needs. Some of those methods include:

  • Face to face – parties directly communicate during the process,
  • Shuttle – the mediator separates the parties and shuttles between each one with proposals for settlement,
  • Facilitative – the mediator helps the parties directly communicate with each other to identify each party’s deep-seated interests. However, the mediator will keep his assessment of the dispute to himself, so as to maintain the neutrality of his role, or
  • Evaluative – the mediator makes an assessment of the merit of the parties’ claims during separate meetings and may propose terms of settlement. In this instance, the mediator will let the parties know what a judge may decide if the mediator was a judge. The parties can be persuaded to resolve to avoid a potential unfavorable trial finding if the mediator gives his assessment on chances of success.
  • Arbitration

    If parties have no interest in trying to resolve their dispute mutually, an option is arbitration. This is the most formal ADR procedure and places the decision in the hands of a third party. The arbitrator will hear the arguments and evidence and then will come to a conclusion to the dispute. During their allotted time, each party can present evidence and arguments. The rules of evidence are usually more relaxed.

    There are two conclusions to arbitration: “binding” and “non-binding.” Binding arbitration means the right to a trial has been waived and the parties agree to accept the decision as final. A non-binding arbitration allows the parties to request a trial if they do not agree or accept the arbitrator’s decision. Non-binding arbitration is rare.

    Our team at FH&P can walk you through, in further detail, ADR options that may be suitable for your matter.

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