ALTERNATIVE DISPUTE RESOLUTION

Alternative Dispute Resolution may consist of one or a combination of the following approaches:

• Neutral Evaluation - consists of a presentation by each party of the facts and issues in dispute to a neutral evaluator responsible for assessing the merits of the case and rendering a non-binding opinion. This non-binding evaluation often facilitates further constructive negotiation between the parties.
• Mediation - consists of a session or sessions with an experienced, trained neutral mediator who assists the parties in reaching an acceptable settlement.
• Arbitration - consists of one or more arbitrators authorized by the parties to reach a decision that is binding on the parties. The parties, with or without counsel, present arguments and evidence, and the arbitrator decides the dispute by issuing a binding decision.

In many contracts, alternative dispute resolution clauses require the parties to utilize some form of alternative dispute resolution as the exclusive remedy or a requirement prior to initiating a lawsuit.

A business faced with an important but isolated problem with a valued vendor or customer may be wise to utilize alternative dispute resolution. Often a mediated dispute can be reached without creating the hostility, increased expense and the mutual dissatisfaction which might occur in formal litigation.

Alternative Dispute Resolution techniques are also utilized in divorce and other family matters. Couples facing separation or divorce can agree to utilize an impartial and experienced marital mediator to facilitate the discussion of vital issues such as custody, parenting arrangements, support, living arrangements, property division and related matters. A marital mediator does not provide legal advice or representation to the parties. The parties create and control their own divorce agreement, subject to court review and approval.

By using alternative dispute resolution, neighbors have the opportunity to try to amicably and creatively resolve boundary line problems and similar issues.

There are some cases where alternative dispute resolution may not be preferable to a conventional civil proceeding. Clients may need a pre-judgment attachment, the power of the Court to order and enforce discovery, and to compel the attendance of witnesses for deposition or trial. In certain cases, their may be a right to trial by a jury may be something to be involved in certain cases. There are also cases where the need to preserve the right to appeal to a higher court requires that the controversy be initially presented in the lower court.

In cases where litigation has commenced and progressed, to some extent, through the pretrial discovery process, the parties can agree to utilize one or multiple forms of alternative dispute resolution. There are primarily two methods to utilize alternative dispute resolution:

• through a court sponsored program or
• by retaining the services of a private organization or individual.

In the Federal and New Hampshire State court systems there are alternative dispute mechanisms in place. In the early 1990s, the New Hampshire Superior Court adopted Rule 170 which was mandatory in five counties and voluntary in the remaining counties. Under the Rule 170 Program, the parties in civil disputes, other than marital or domestic relations matters, elect one form of alternative dispute resolution. The mediators, arbitrators and neutral evaluators who serve the state Superior Courts are all volunteers who have undergone specialized training and donate substantial amounts of their time to the Court' s alternative dispute resolution system. The Superior Court offers neutral evaluation to facilitate resolution of marital or domestic relations matters. The Court does not charge the parties a fee for using these alternative dispute resolution services.

This volunteer effort dramatically helps the New Hampshire Superior Court reduce its case load, jury time, and Judge, Clerk and staff time devoted to resolving civil cases and has saved the citizens of New Hampshire an extraordinary amount of attorney's fees and expenses.

Attorneys David Osman, Benette Pizzimenti, and Willard Martin, Jr. of Martin, Lord & Osman have donated significant amounts of their time serving as certified mediators, arbitrators and neutral evaluators through the Rule 170 Program. Many clients of this office have benefitted by having their cases resolved as a result of the commendable efforts of other volunteers in the Rule 170 Program.

There are private organizations and individuals who provide alternative dispute resolution services to the public on a fee-paying basis. One of the more well known national organizations is the American Arbitration Association. It provides a variety of alternative dispute resolution services. It has a very useful website located at http://www.adr.org. The American Arbitration Association is a not for profit organization founded in 1926. It helps resolve disputes through mediation, arbitration and out of court settlement procedures. It's regional offices provide efficient case management, refined rules and procedures and a roster of qualified individuals to arbitrate and/or mediate cases.