Alternative Dispute Resolution

There are different processes available to settle lawsuits without having to go to trial. The most common forms of ADR are Mediation, Arbitration, and Case Evaluation. In ADR, a trained, impartial person decides disputes or helps the parties reach resolutions of their disputes for themselves. The persons are neutrals who are normally chosen by the disputing parties or by the court. Neutrals can help parties resolve disputes without having to go to court.

Alternative Dispute Resolution or ADR has been gradually evolving within the Fresno Superior Court for the past serveral years. The most active programs have been Judicial Arbitration, Mediation of Family Law Property Disputes by the San Joaquin College of Law, and voluntary mediation of Small Claims Cases by the Dispute Settlement Center from the Fresno Better Business Bureau.

In the summer of 1999 Fresno Superior Court was awarded a grant by the Dispute Resolution Program Act to develop an ADR Oversight Committee and hire and ADR Administrator. The Committee is made up by Judges, an Administrative Officer from the Court, representatives from the Fresno County bar Association, the Executive Director from the Better Business Bureau, a Professor from the San Joaquin College of Law and the Director of the Center for Peacemaking and Conflict Studies at Fresno Pacific University. In the fall of 1999, the Fresno Superior Court was awarded a grant by the Judicial Council of California to implement a Pilot Program for Early Mandatory Mediation of Civil Cases.

The Fresno Superior Court’s Alternative Dispute Resolution programs are directed by an ADR Oversight Committee which includes the following representatives:

Judge Mark Snauffer, Chairman
Judge Dale Ikeda
Judge Stephen Kane
Sandra Silva, Court Administration
Maxine Cortes, Civil Dept. Manager
Douglas Broten, Better Business Bureau

Mari Henson, ADR Administrator
Mario Beltramo, Bar Association
Kimberly Gaab, Bar Association
Dorothy Carroll, Esq., Bar Association
Richard Cartier, San Joaquin Law School
Ron Claassen, Fresno Pacific University

Advantages of ADR

Often quicker than going to trial, a dispute may be resolved in a matter or days or weeks instead of months or years.
Often less expensive, saving the litigants court costs, attorney's fees and expert fees.
Can permit more participation, allowing the parties the opportunity to tell their side of the story with more control over the outcome.
Allows for flexibility in choice of ADR processes and resolution of the dispute.
Fosters cooperation by allowing the parties to work together with the neutral to resolve the dispute and mutually agree to a remedy.
Often less stressful than litigation. Most people have reported a high degree of satisfaction with ADR.

Because of these advantages, many parties choose ADR to resolve disputes instead of filing a lawsuit. Even after a lawsuit has been filed, the court can refer the dispute to a neutral before the lawsuit becomes costly. ADR has been used to resolve disputes even after trial, when the result is appealed.

Disadvantages of ADR

ADR may not be suitable for every dispute.

If ADR is binding, the parties normally give up most court protections, including a decision by a judge or jury under formal rules of evidence and procedure, and review for legal error by an appellate court. ADR may not be effective if it takes place before the parties have sufficient information to resolve the dispute. The neutral may charge a fee for his or her services. If the dispute is not resolved through ADR, the parties may then have to face the usual and traditional costs, such as attorney's fees and expert fees.

Lawsuits must be brought within specified periods of time, known as Statutes of Limitations. Parties must be careful not to let a Statute of Limitation run while a dispute is in an ADR process.

The Most Common Types of ADR

Mediation

In mediation, the mediator (a neutral) assists the parties in reaching a mutually acceptable resolution of their dispute. Unlike lawsuits or some other types of ADR, the mediator does not decide how the dispute is to be resolved. The parties do. It is a cooperative process in which the parties work together toward a resolution that tries to meet everyone's interests, instead of working against each other. Mediation normally leads to better relations between the parties and to lasting resolutions. It is particularly effective when parties have a continuing relationship, such as neighbors or businesses. It also is very effective where personal feelings are getting in the way of a resolution. Mediation normally gives the parties a chance to freely express their positions. Mediation can be successful for victims seeking restitution from offenders. When there has been violence between the parties, a mediator can meet separately with the parties.

Arbitration

In arbitration, the arbitrator (a neutral) reviews evidence, hears arguments, and makes a decision (award) to resolve the dispute. This is very different from mediation whereby the mediator helps the parties reach their own resolution. Arbitration normally is more informal, quicker, and less expensive than a lawsuit. In a matter of hours, an arbitrator often can hear a case that otherwise may take a week in court to try. This is because the evidence can be submitted by documents rather than by testimony.

There are Two Types of Arbitration in California

Private arbitration by agreement of the parties involved in the dispute. This type takes place outside of the court and normally is binding. In most cases "binding" means that the arbitrator's decision (award) is final and there will not be a trial or an opportunity to appeal the decision.
Judicial arbitration ordered by the court. The arbitrator's decision is not binding unless the parties agree to be bound. A party who does not like the award may file a request for trial with the court within a specified time. However, if that party does not receive a more favorable result at trial, the party may have to pay a penalty.

Case Evaluation

In case evaluation, the evaluator (a neutral) gives an opinion on the strengths and weaknesses of each party's evidence and arguments. Each party gets a chance to present their case and hear the other side. This may lead to a settlement, or at the least, help the parties prepare to resolve the dispute later. Case evaluation, like mediation, can come early in the dispute and save time and money. Case evaluation is most effective when:

Someone has an unrealistic view of the dispute. The real issue is determining case value. There are technical or scientific questions to be worked out.

More Information

There are several other types of ADR. Some of these include conciliation, settlement conference, fact finding, mini-trial, Victim Offender Reconciliation Program, and summary jury trial. Sometimes parties will try a combination of ADR types. The important thing is to try to find the type of ADR that is most likely to resolve the dispute.

The selection of a neutral is an important decision. There is no legal requirement that the neutral be licensed or hold any particular certificate. However, some programs have established qualification requirements for neutrals.

Agreements reached through ADR normally are put into writing and, if the parties wish, may become binding contracts that can be enforced by the court.

You may wish to seek the advice of an attorney as to your legal rights and other matters relating to the dispute.

Court Public Service Announcement

Click below to view a Public Service Announcement about Alternative Dispute Resolution that is part of a series developed through a grant provided by the Administrative Office of the Courts. The series entitled, "Meet the Court," is intended to provide you with quick information and education about Family Court Services, and has been developed in both English and Spanish.

Click to language version you wish to play. All files less than 2.5MB in size.

Alternative Dispute Resolution: English / Español