Not all civil disputes have to end up in a courtroom. In fact, both parties can choose to set aside the idea of a trial and agree to an approach known as alternative dispute resolution. While it’s still advisable for both parties to secure legal representation, this approach can be in the best interests of everyone involved. Here are some of the basics of how ADR works in New York City and why retaining an attorney is the right thing to do.
Defining Alternative Dispute Resolution
Alternative Dispute Resolution or ADR is a strategy designed to come to an agreement about a matter that would otherwise end up being addressed in a court of law. The goal is to come to terms agreeable to both parties without having to involve the court system proper. In order for ADR to stand a chance of working, both parties must be willing to meet and agree to negotiate in good faith.
The timing for any type of ADR action varies. Many attorneys will encourage their clients to consider this approach before any legal action is filed with a court. Even if one or both parties choose to take legal action first, it’s possible to place those actions on hold for a time and seek to reach a reasonable solution before the court date arrives.
How Does ADR Work?
ADR can be pursued in more than one way. The more common approach is by arbitration. With this approach, the two parties meet with their respective legal counsels present. The process works much like a courtroom setting, without actually being in a court room. In the place of a judge, an arbitrator or a panel of arbitrators preside over the proceedings. Arbitrators are typically other lawyers who are not involved in the case, or retired judges.
Each party is free to make opening statements and present witnesses for questioning. Evidence is introduced for the considering of the arbitrator or arbitrators. What makes this different from a court is not only who is hearing the evidence and arguments. In New York City and other parts of the state, the rules of discovery for evidence and actions that apply during a trial are more casual in an ADR meeting. The theory is that doing so streamlines the pursuit of a resolution and makes it possible to come to a conclusion sooner rather than later.
Arbitration may be binding or non-binding. If the decision is binding, that means both parties have agreed to abide by the findings of the arbitrator and the outcome can be enforced by the court. When it’s non-binding, that means the arbitrator has issued an advisory opinion that the parties can reject. With the latter, the matter is likely to escalate to an actual court trial.
Mediation is another option within the ADR approach. Legal counsel should still be present, but the goal is not to seek an opinion or decision from an arbitrator. Instead, a mediator will seek to help the two parties arrive at their own decision on how to settle the matter. The power to decide remains with the two parties. In the best-case scenario, they can come to a mutually satisfactory agreement and avoid any further legal action.
What Laws Impact the Way ADR Works in New York City?
As in other states, the Federal Arbitration Act is the basis for ADR efforts in New York, including New York City. Since 1970, the addition of what is known as the New York Convention and the Panama Convention have been included in the original provisions of the 1945 FAA. These form the basis for ADR throughout the state.
What Types of Issues Can Be Resolved Using ADR?
Civil actions, including those involving contracts between two or more parties, can be settled using an ADR approach. Issues such as claims of unlawful termination, breach of contract, negligence on the part of a business or service, and injury claims are a few examples. If you are not sure this approach could be used to resolve your pending legal issue, talk with your lawyer. When this is a possibility, ask your legal counsel to contact the other party and determine if he or she is willing to try arbitration or mediation before taking the matter to court.
Why is This Approach Worth Considering?
Alternative Dispute Resolution is attractive for two reasons. First, it’s less costly than going to court. This is true in terms of legal fees, court fees, and any incidental costs that you could incur, such as losing income from having to take time off from work.
The second reason focuses mainly on how quickly a resolution can be reached. While the more relaxed approach still focuses on protecting the interests of both parties, it’s possible to move at a much quicker pace. The result is that a matter which would require months to resolve in a court could be settled in a few weeks or less by employing mediation or arbitration.
Does Having an Attorney Involved Really Matter?
Having legal counsel present during ADR is imperative. A lawyer represents your interests both in terms of understanding the rights of the client and knowing how to keep the arbitration process in line with current laws and precedents. Far from slowing down the process, the presence of legal counsel will help the arbitration or mediation move forward.
If you are facing the possibility of a lengthy civil or contract case, talk with your lawyer about ADR. It could be the solution that allows you and the other party to settle the matter and get on with your lives.