Alternative Dispute Resolution – A Better Way to Resolve Many Disputes
Anyone who has been to Court knows that the process can be expensive, time consuming, uncertain and extremely stressful. Not many people who have been through a trial have enjoyed the process, even if they’ve won. And with a good attorney costing $300 – $500 an hour, the cost of the dispute can quickly exceed the amount in question, an especially unsatisfying result for the clients and their lawyers alike.
According to the King County Superior Court Annual Statistical Report, 69,880 cases were filed in King County Superior Court in 2012. There were 403 jury trials and 566 non-jury trials and at the end of the year, there were still 19,396 cases pending, which are allocated among 53 judges and 11 commissioners. Under these circumstances, it’s no wonder that it takes between 18 months and two years for a dispute to get to trial. And because of this overcrowding, many cases are “brokered” to different judges shortly before the trial, meaning additional delays of many months and a brand new Judge. Because of this, the King County Court rules require alternative dispute resolution for any dispute of $50,000 or less. Most other counties are in similar situations. So why not just cut to the chase and resolve the dispute through “ADR” – Alternative Dispute Resolution?
ADR generally takes two forms:
Arbitration is essentially a trial in front of a private judge, who may be a lawyer, an expert in a relevant field or even a retired Judge. In an arbitration, the parties gather evidence for an agreed-upon “discovery” period. They then draft and submit briefs and exhibits, and then a hearing is held. At the hearing, the Petitioner presents his or her case, followed by the Respondent, and then the Arbitrator will make a ruling, either from the “bench” or afterward in a memorandum. Arbitration can be binding or non-binding, depending on the agreement of the parties. Because arbitration is not encumbered by the Washington Court Rules, the process is faster and therefore less expensive. And since the arbitrator can be a recognized expert in his or her field, or an attorney who practices in a particular field, the decision may be more thoroughly reasoned.
Mediation involves a neutral third party who facilitates a settlement between the parties. Typically, the mediator places the parties in separate rooms, and “shuttles” between the two, making suggestions on how the parties might resolve the dispute. There is no hearing, no testimony and no judgment, which means that the parties retain control over how the dispute is resolved. There is nothing requiring the parties to settle in mediation, however once each side has had a chance to tell their story, and to hear the other side’s story, often the matter can be resolved. As with arbitration, mediation is almost always much less expensive than going to Court. It is usually also much less expensive.
There are other advantages to ADR
- Flexibility – ADR is not constrained by the maze of Court Rules
- Efficiency – the neutral can be an expert in his or her field, rather than a Judge
- Privacy – by agreement of the parties, ADR can be private
- Less Adversarial – because of the setting, ADR can be less adversarial
- Confidentiality – because ADR is a private proceeding, it can be made confidential