How Do You Use Alternative Dispute Resolution to Resolve Conflicts Outside of Court?
Lawyer Magazine
How Do You Use Alternative Dispute Resolution to Resolve Conflicts Outside of Court?
In the intricate world of legal conflict resolution, we sought the expertise of attorneys and mediators to provide a glimpse into the effectiveness of alternative dispute resolution (ADR). From engaging in private mediation to planning ADR provisions for future conflicts, discover the diverse strategies our ten legal professionals have employed to resolve disputes without stepping into a courtroom.
- Engage in Private Mediation
- Propose Mediation for Amicable Settlement
- Settle Quickly with Strong Facts
- Collaborative Divorce Manages Family Disputes
- Mediation Fosters Compassion and Understanding
- Implement Amicable Divorce Process
- Mediation Supports Non-Adversarial Co-Parenting
- Divorce Mediation Encourages Agreement Compliance
- Facilitate Communication to Resolve Disputes
- Plan ADR Provisions for Conflict Resolution
Engage in Private Mediation
We regularly engage in private mediation to resolve our cases out of court. We find it to be a valuable tool to preview the strengths (and possibly weaknesses) of our case. We use seasoned professionals whom we trust to provide us with valuable and candid feedback about the realities of litigating our disputes, so we can make informed decisions about whether to resolve them outside of court.
Propose Mediation for Amicable Settlement
One example of using alternative dispute resolution to effectively resolve a conflict outside of court involved a contentious divorce case where both parties were initially unwilling to compromise. Recognizing the emotional and financial toll a prolonged court battle would have on both sides, I proposed mediation as a way to reach an amicable settlement.
In this case, the couple had significant disagreements over asset division and child custody arrangements. They were also dealing with heightened emotions, which made direct negotiations difficult. By bringing in a skilled mediator, we created a neutral space where both parties could openly discuss their concerns and priorities. The mediator helped facilitate communication, ensuring that each party felt heard and understood.
During the mediation sessions, we broke down the issues into manageable parts, addressing one topic at a time. This methodical approach helped reduce the emotional intensity and allowed for more rational discussions. For instance, when discussing child custody, we focused on the best interests of the children, which helped shift the parents' perspectives from winning a battle to collaboratively planning their children's future.
The mediator also used techniques such as reality testing, where they asked each party to consider the possible outcomes and consequences of continuing the dispute in court. This helped both sides understand the uncertainties and potential downsides of litigation, making them more open to compromise.
After several sessions, the couple was able to agree on a fair division of their assets and a joint custody arrangement that worked for both of them. By opting for mediation, they saved a considerable amount of time and money compared to going to trial. More importantly, they reached a resolution that they both felt was fair, which likely would not have been possible in the adversarial environment of a courtroom.
This experience highlighted the effectiveness of mediation in resolving disputes by focusing on collaboration and mutual understanding, rather than conflict and competition. It also demonstrated how alternative dispute resolution can preserve relationships and provide more satisfactory outcomes for all parties involved.
Settle Quickly with Strong Facts
One case that comes to mind, where we got a potential lawsuit settled within a week of me contacting the opposing side, was an employment discrimination case. The first settlement letter, addressed to the employer, had the typical facts and statements you would include to reach an agreement without involving litigation. The goal of these types of letters is to demonstrate the employer's error and potential liability should we have to go to court.
Their response was also typical; it attempted to rebut our version of events and solidify that there was no liability. Luckily for me, however, my client had a response for every single argument from opposing counsel, showing they had a clear command of the facts and ultimately the law on their side. After that letter, the next response from opposing counsel was them accepting our settlement offer.
I learned from that if your client has the facts on their side and can articulate them confidently and clearly (and if the opposing counsel has any sense of risk management), it's certainly possible to get an agreement that saves both time and money, and energy for all parties. Moral of the story: If you're confident in your client and case, alternative dispute resolution is always a good first step before pulling the trigger on litigation.
Collaborative Divorce Manages Family Disputes
Collaborative divorce is an alternative dispute-resolution method particularly adept at managing the complexities and sensitivities associated with divorce and family disputes. It is a voluntary process where both parties commit to resolving their issues without litigation. Each spouse retains a collaboratively-trained attorney, and together with a financial neutral and a mental health neutral, they work towards resolving all the issues related to their unique family.
One of the most significant benefits of collaborative divorce is its ability to preserve relationships. Traditional litigation often exacerbates conflicts and leads to adversarial interactions, which can be especially detrimental when children are involved. Collaborative divorce fosters a cooperative environment where both parties work together to find solutions, minimizing animosity and promoting healthier post-divorce relationships.
Collaborative divorce places a strong emphasis on the well-being of the entire family. The mental health neutral works with the parents to ensure that the parenting plan prioritizes the children's needs. This helps reduce the emotional impact of divorce on children and supports a stable environment for them. These professionals also help the spouses manage their emotions, facilitate communication, and ensure that both parties feel heard and respected.
In collaborative divorce, the parties retain control over the decision-making process rather than leaving it in the hands of a judge. This empowerment allows for creative and customized solutions tailored to the family's unique circumstances. Both parties are more likely to adhere to agreements they have actively shaped and agreed upon.
Collaborative divorce is often more cost-effective and quicker than traditional litigation. The process is designed to streamline negotiations and avoid the prolonged and costly battles typical in court.
Collaborative divorce is a powerful example of how ADR can effectively resolve family conflicts outside of court. By fostering cooperation, preserving relationships, prioritizing children's needs, and maintaining confidentiality, it offers a humane and practical alternative to traditional litigation. I have witnessed firsthand the transformative impact of collaborative divorce on families, empowering them to navigate divorce with dignity and respect, and ultimately fostering more positive outcomes for all involved.
Mediation Fosters Compassion and Understanding
Can you imagine sitting in a mediation session across from your soon-to-be ex-spouse and feeling compassion, kindness, and understanding rather than anger, judgment, and resentment?
Those are probably not the first feelings that come to mind when you’re contemplating divorce. As a recovering family law litigator, I witnessed and, unfortunately, participated in the brutal win-lose mentality of a traditional litigated divorce where the common thinking is one side is right and the other is wrong.
Mediation, a form of alternative dispute resolution, is a confidential process. What is said in mediation stays in mediation. The mediator is a neutral, representing neither spouse. This guarantee of confidentiality creates a safe space for couples to discuss the issues of their divorce and listen to what is important to each of them without the battle armor of litigation.
I have worked with hundreds of couples helping them reach mediated marital settlement agreements. Couples who choose mediation don’t want to incur the expense of hiring litigation attorneys to prepare a case to go to court to be decided by a judge, a person who does not know them or their family’s needs.
Couples who choose mediation want to control the outcome of their divorce process and pave the way for their life after divorce, financially and emotionally, which is the exact result achieved in mediation. In my mediation work with couples, they learn how to listen to each other speak about what is important to them. An almost magical shift happens, and kindness, compassion, and understanding for the other spouse leads to creating an agreement that resolves all issues to the benefit of both spouses.
Sounds too good to be true?
At the end of a recent successful mediation session regarding the division of the wife’s retirement account, the wife commented to me: “Thank you for navigating us through what I believe was the most challenging part of the mediation process. I greatly appreciate how you put everything in perspective for us in a fair and unbiased manner. The outcome ensures both of us are well prepared for the future. We truly are fortunate to have you as our guide through this journey.” L.S.
In my experience, the benefits of mediation rooted in kindness, compassion, and understanding have a ripple effect on the children, the extended family, the workplace, and the community.
Implement Amicable Divorce Process
Our firm is currently implementing a new way to divorce, called Amicable Divorce. This approach helps couples settle their issues before filing any paperwork with the court. It's a great way for couples to minimize conflict and reduce costs. We use technology to empower clients and reduce lawyer involvement in certain parts of the divorce process. The clients still hire vetted, experienced attorneys to guide them through potential conflicts, obstacles, and negotiations, but everyone's goal is settlement without court. I'm excited about the positive impact this process will have on the future of divorce.
Mediation Supports Non-Adversarial Co-Parenting
I use mediation daily to help divorcing couples stay out of court. Mediation helps them understand themselves and each other, and it helps them focus on problem-solving rather than blame. Because this is a non-adversarial process, they can go about the business of transitioning from one household to two—and they can often change their relationship to one of being cordial co-parents.
One couple I worked with struggled because, while they were divorcing, they were dealing with a teenager who had intense medical needs. Because they were mediating, they were able to keep lines of communication open. There were times when their conversations became quite intense, and there were times when we went for months without meeting because they were dealing with emergencies. They knew the strengths and weaknesses of their family, and they knew what their children needed. We got through it together. Now they are divorced, but they are great co-parents, and their children are healthy. I don't think a court could have dealt with it any better than we did—in fact, the adversarial nature of court would have made their situation much more difficult for all involved.
Divorce Mediation Encourages Agreement Compliance
As a Divorce Mediator, I use A.D.R. every day with clients. Helping clients reach agreements they believe are good for them and their children is powerful, as they are the ones who have to live with the agreements once out of the court system. These agreements are complied with more often than those being forced upon them, with others telling them what to do. They are buying into these agreements and walking away from the process much better than if they had litigated.
Facilitate Communication to Resolve Disputes
There are a number of matters I could share, but one of my favorites involved a dispute between a world-wide operator of gymnasiums and a supplier of used gym equipment. The relationship was a new one, and problems had arisen early on. We went back and forth for a bit. It became clear to me that the issues arose due to a lack of communication. I requested that the attorneys permit me to meet in a room with just their clients; they approved. Before that meeting took place, I got together with the supplier and suggested that he give a substantial credit to the operator, but limit usage of the credit to 10% of each invoice. The idea was accepted, first by the supplier, then by both parties in the joint session.
I have not been in touch recently, but last I heard, the two entities did business with each other over a number of years.
Plan ADR Provisions for Conflict Resolution
There are many ways in which alternative dispute resolution can be used to resolve a conflict outside of the regular court process. As a mediator/arbitrator of franchise disputes, and a former franchise lawyer for 40 years, I frequently remind lawyers that they should plan ahead for possible disputes and the most practical ways of dealing with those disputes. The most effective procedure for resolving disputes out of court is to include, where possible, alternative dispute resolution provisions in written agreements, policy manuals, employment contracts, consumer contracts, or the like. These can take the form of mandatory negotiation, mediation, and/or arbitration. They can also include ombuds procedures in the case of larger institutions like banks or insurance companies. The key objective in all of these situations is to provide an opportunity for the parties and their lawyers to engage in a more effective, timely, inexpensive, and confidential process to reach a resolution without having to get involved in lengthy, costly, and time-consuming litigation. A win-win result for all involved.
