Florida Law
Florida Alternative Dispute Resolution
Alternative Dispute Resolution
For years people have complained about the cost, delay, and acrimony of litigation. Even if you win, going to court can be an expensive and emotionally draining experience. As a result, alternatives to the traditional litigation process have been growing in popularity around the country. These alternatives, known collectively as alternative dispute resolution (ADR), can be used to resolve all types of disputes, from simple neighborhood disagreements to complex, multi-party corporate conflicts involving large sums of money.
What Is ADR?
Stated simply, ADR is the process of resolving disputes
without using the court system. The most widely used
methods are mediation (where a neutral third person
helps facilitate an agreement between the parties)
and arbitration (where a neutral third person hears
both sides of a dispute, then issues a decision). But,
there are actually dozens of different procedures,
each with its own unique structure, giving parties
an abundance of ways to approach their particular problem.
The allure of ADR is that it promotes faster and less costly settlements. Disputes that might last months or years in litigation, may, if the parties cooperate, be settled in a matter of days or weeks through ADR. Faster settlements mean lower costs and less emotional wear and tear on the parties.
ADR has other benefits as well, for example, flexibility. Being able to pick and choose among ADR procedures permits parties to tailor the dispute resolution process to fit their needs. If the parties believe they can work out the dispute themselves, mediation is the best answer. If they need a third person to make a decision, arbitration is the proper course. Parties using ADR select a neutral third person with whom they feel comfortable and who has the background and experience necessary to understand the dispute, rather than getting whichever judge is available. The parties also decide on scheduling and procedural matters, such as how much discovery should be conducted.
ADR's flexibility often leads to a more satisfying result. Statistics show that parties having used ADR and played a role in crafting the resolution process or the resolution itself are more apt to abide by the resulting decision or settlement. Moreover, ADR permits parties to resolve their dispute without destroying their relationship, whether personal or professional. Trials tend to turn disputes into contests with winners and losers. ADR, particularly mediation, is less opponent-oriented and allows parties to preserve and build upon their previous relationship.
Another benefit of ADR is confidentiality. Litigation places a dispute in the public domain, often disclosing proprietary or personal information. With ADR, the entire matter is private unless the parties agree otherwise.
Florida has incorporated a number of ADR programs into its court system. Under current Florida law, judges in civil lawsuits have the power to require that parties at least try to resolve their dispute outside the courtroom either through mediation or non-binding arbitration. Florida has instituted a certification process for mediators requiring that they meet specified education standards and complete a training program. There is no certification process for arbitrators as yet, but the state has suggested that arbitrators be members of The Florida Bar and have completed a training program.
While parties are encouraged to choose a mediator or arbitrator with experience and knowledge, it is not necessary that he or she be certified by the state.
A final point that should be made is that ADR may not be right for every situation. If the parties or their lawyers are especially acrimonious, non-binding ADR, particularly mediation, is probably not the forum for resolution. Neither is ADR appropriate if one or both parties need a judicial precedent as guidance for future conduct. Parties looking for well-established rules of procedure and evidence, wider discovery allowances, and the possibility of appeal may also prefer to go to trial.
ADR Options
The following is an overview of some of the more well-known
ADR methods. Unlike litigation, where "one size
fits all," ADR permits parties to choose among
an increasing number of established procedures or design
one of their own.
Mediation
Mediation is the most informal method of alternative
dispute resolution. It involves an impartial third
person (mediator) or a panel of mediators helping parties
negotiate a settlement. Often, each side will meet
in private with the mediator and then in a joint session
with the other side. Resolution of the dispute is solely
up to the parties since the mediator does not have
any power. The mediator's task is to help the parties
reach their own resolution.
Mediation differs from litigation and arbitration because it seeks a solution that satisfies all parties. In litigation and arbitration, a judge or arbitrator hears evidence relating to a particular conflict and then decides who wins and who loses based upon applicable laws. Not so with mediation. Also, courts and arbitrators are limited by law as to what remedies they can provide. Mediation is limited only by the nature of the problem and the parties' own creativity.
Sometimes parties go through mediation without reaching an agreement. In this case, parties may want to pursue arbitration or some other form of ADR, or they may want to go to court. One of the advantages of mediation is that it is entirely voluntary. Parties are not forced to agree to anything. If parties do not reach an agreement, the process of mediation often defines the issues more clearly and gives the parties a sense of the other side's perspective.
Arbitration
Like litigation, arbitration allows both parties to
present their cases to a neutral third person or a
panel of third persons who are experts in a particular
area. The arbitrator or arbitration panel makes a decision
regarding the dispute after conducting a hearing, which
may include oral arguments and the presentation of
evidence through witnesses and exhibits.
Depending on the parties' choice, the decision can be binding or non-binding. The advantage of a binding decision is that once the decision is issued, the dispute is over, without any further costs. However, a binding arbitration decision can rarely be appealed and the parties are stuck with the decision whether they like it or not. A non-binding decision does not lock the parties into anything and can be helpful when the parties are looking for a basis from which to negotiate further.
Arbitration is best used in cases involving factual conflicts. Many people feel more comfortable having their dispute settled by an expert who is uniquely capable in a particular area, rather than by a judge who is accustomed to handling a wide variety of cases and may not be well-versed in the area at issue.
Mediation-Arbitration
Mediation-arbitration combines mediation and arbitration.
In this arrangement, the parties agree in advance that
if they are unable to resolve their dispute using mediation,
they will arbitrate and receive an advisory or binding
judgment on all or part of the issues which remain
in dispute. In these instances, the mediator will typically
switch roles and, as arbitrator, provide the judgment.
The mediation-arbitration process has some advantages
over using mediation or arbitration alone. There is
greater incentive for parties to cooperate in the mediation
stage of the process because they know that if they
are unable to come to an agreement voluntarily, they
may have a solution imposed upon them in the arbitration
stage. Similarly, mediating a dispute before arbitration
affords the parties the opportunity to craft their
own resolution on all or some of the issues, rather
than have an independent third person decide the case
for them.
Neutral Fact-Finding
Neutral fact-finding is an informal process in which
an agreed-upon neutral third person is asked to investigate
a dispute, usually one involving complex or technical
issues. The neutral person analyzes the facts and renders
his or her findings in a non-binding report or recommendation.
This process can be especially useful in handling allegations
of sex or race discrimination within a company. Often,
such cases provoke strong emotions and internal division.
If both parties are employees of the same company,
there may be conflicts of interest that could interfere
with a supervisor's or manager's ability to conduct
a fair and impartial investigation. To avoid the appearance
of unfairness, a company may turn to an outside neutral
third person in hopes of reaching a settlement which
all employees will respect.
Mini-Trial
In a mini-trial, each party makes a short presentation
to a panel of experts. This panel usually consists
of one or more neutral persons and a representative
from each party. After hearing the arguments and evidence,
the panel confers and issues a non-binding decision,
providing the parties with an objective appraisal of
their respective cases.
Summary Jury Trial
In a summary jury trial, the parties present their arguments
and evidence to a mock jury consisting of six or more
individuals. After conferring, the jury returns a non-binding
verdict. This verdict provides the parties a basis
for predicting what a jury might do in a real trial.
The parties can question the mock jurors about their
verdict and learn how they reached their decision.
Finding an ADR Provider
Several steps should be taken when choosing an ADR provider.
Parties should ask potential mediators or arbitrators
about their experience, training, and substantive knowledge
about the issues in dispute. Success depends upon both
parties feeling comfortable with the provider. If any
of the parties feels that the provider has shown bias,
has a conflict of interest, or lacks the skills or
experience necessary to hear the dispute, that concern
should be voiced and another ADR provider should be
chosen.
Costs
ADR provides a variety of dispute resolution choices
between pursuing litigation and private settlement
between the parties. Depending on which ADR method
is used, the process can be more adversarial, with
the parties presenting arguments and an independent
third person making the final decision, or more collaborative,
with the parties themselves crafting the result.
Variety of ADR Choices
ADR provides a variety of dispute resolution choices
between pursuing litigation and private settlement
between the parties. Depending on which ADR method
is used, the process can be more adversarial, with
the parties presenting arguments and an independent
third person making the final decision, or more collaborative,
with the parties themselves crafting the result.
Resources
The Florida Dispute Resolution Center in Tallahassee
was established in 1986 by the Florida Supreme Court
and Florida State University College of Law as a statewide
center for education, training, and research in ADR.
For a list of certified mediators in your area or more
information, call (904) 921-2910.
The American Arbitration Association is the most established provider of ADR services nationwide. They have offices in Miami (305) 358-7777 and Orlando (407) 648-1185.