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1. An Alternative to What?
Alternative Dispute Resolution (ADR) can help people resolve their differences without filing formal legal action; or, if a formal legal proceeding has been filed, ADR provides the parties an opportunity to resolve issues without a having to endure the costs, unpredictability, delays and public nature of a trial.
2. Why do people participate in alternative dispute resolution?
It spares people the economic and psychological burdens of fully preparing for and conducting or participating in actual trial. ADR can often be scheduled to accommodate the parties’ personal schedules and can avoid the delays associated with conventional litigation. It empowers the parties to control and determine the outcome of the case and helps the adversaries “turn the page.” In cases where the parties are likely to interact in the future, it can help “reset” their relationships. ADR, and mediation in particular, often allows the parties to maintain confidentiality about the proceedings and the result.
3. What are the forms of alternative dispute resolution?
Alternative dispute resolution could be either mediation, arbitration, neutral evaluation, or transformative mediation.
Mediation is a confidential process in which all sides to a dispute meet with a trained qualified mediator to assist the parties to resolve all or some of the issues. Mediators are not engaged to provide legal advice nor do they evaluate or decide the case but are trained to listen, facilitate and help the parties listen to each other in a different way to see if some reasonable compromise can be achieved.
Arbitration is similar to a trial but it is usually less formal and generally not held in a courtroom. The parties choose an independent person or possibly three (or occasionally even more) to preside over a hearing where witnesses may be called to testify. Documentary or other evidence may be introduced and the arbitrator or panel of arbitrators renders a decision. Generally, arbitration is “binding,” meaning that the parties have agreed that the decision of the arbitrator(s) will be final and the parties will be bound by it. Occasionally, by agreement, arbitration can be non-binding or “advisory” but generally the term arbitration in New Hampshire refers to a contractual obligation to be bound by the result of the decision of the arbitrator(s.)
In Neutral Evaluation the parties seek a completely neutral opinion as to the likely outcome of a case were it to be tried and retain a qualified neutral person to hear a summary presentation of each side’s position and then the neutral evaluator will tell the parties his or her opinion of the likely outcome case. This opinion may help the parties reconsider positions taken in previous negotiations or help the parties initiate serious settlement discussion and to hopefully resolve the case by negotiation.
Transformative mediation can be useful in situations where the parties’ behavior toward each other is an important issue. Transformative mediation is designed to assist the parties to try to modify their behavior by agreement where the need for changes in behavior may be at the heart of resolving the dispute. This type of mediation can be used in work place disputes, family issues, neighbor and neighborhood problems, disputes between businesses, disputes within a business involving compensation, corporate governance, succession planning and implementation, disputes between customers and businesses where both see value in trying to continue the relationship on better terms and transformative mediation can be useful where there are issues such as serious disagreements within a condominium or similar association, issues between professionals and their clients where there may be some hope to continue the relationship if the parties can work through the immediate discord and in certain types of on-going construction projects where the project could benefit on a go-forward basis by keeping the parties to the project working together but with a new or renewed understanding with better communication.
4. The State of New Hampshire Judicial Branch ADR Programs
The State of New Hampshire Judicial Branch has developed and sponsors an excellent array of alternative dispute resolution programs. These programs were designed to and have done an excellent job to increase citizen satisfaction with the legal system, to provide more affordable justice, reduce protracted and repetitive litigation, empower the participants to make decisions potentially affecting their future and also to enhance court efficiency. All of these court-sponsored programs are described in more detail by referring to the Office of Mediation and Arbitration on the New Hampshire Judicial Branch Website where you can find forms, and frequently asked questions,
5. More About David S. Osman, Esq.
Attorney David Osman has many years of experience and training as a mediator, arbitrator and neutral evaluator in addition to his 39 years of civil litigation experience. He actively participates in several of the Court sponsored programs in addition to assisting disputants in non-litigated matters. He is a member of the New Hampshire Bar Association Section for Alternative Dispute Resolution and is a Director of the New Hampshire Conflict Resolution Association.
Alternative dispute resolution is something that is becoming more prevalent as a formal part of the legal system and our culture. In most court-sponsored programs the parties are strongly encouraged, and in may cases required, to participate in some form of alternative dispute resolution before actually having a trial. Peer mediation programs in schools are becoming more widespread to combat various forms of harassment, bullying and discrimination. Alternative dispute resolution is offered and sometimes required as part of law school curriculum in recent years. Arbitration and mediation are often required as an exclusive remedy or as a prerequisite to formal litigation in certain types of contract such as American Institute of Architects contract forms and in many other common commercial agreements. Automobile insurance policies typically require or allow the insurance carrier to elect arbitration as a way to resolve uninsured or under-insured motorist claims. Personnel policies in the workplace often require or strongly encourage mediation when certain types of problems arise.