ADR- The Judicial Life Ring

LEGAL MATTERS COLUMN

BENICIA HERALD

September 21st 2007


By: Stephen Gizzi

ADR – THE JUDICIAL LIFE RING

In a recent column, I referenced the fact that only 10% of civil cases filed ever get tried in court. Several readers were curious about what became of the remaining 90%, which clearly represent the vast majority of those filed. While some cases simply fade away as the litigants lose interest or confidence in their case over time, most get resolved through one of the many alternative dispute resolution (ADR) processes. ADR is the umbrella term covering a wide variety of dispute prevention, management and resolution processes that are currently available to those in conflict, before or after litigation is initiated.

The Constitution mandates that every criminal defendant is entitled to a speedy trial. Therefore, criminal cases are given priority use of judicial assets. This means that civil cases must wait until courtrooms are available. Due to heavy criminal calendars, this has created a backlog of civil cases. Add to this fact the reality that there is a shortage of judges – nine alone just in Solano County – and it is easy to see why ADR has been embraced by the judicial system in a big way for the past 20 years or so. Frankly, without ADR, the civil justice system would have fallen apart years ago.

Obviously, the best way to avoid a lawsuit is to prevent one from occurring in the first place. We always advise business clients for example, to examine their operations to look for areas of repetitive conflict. In that way, if they can identify and plan out those operational challenges through intelligent system design, they will reduce the likelihood of future litigation. In a sense, this preemptive action is a form of ADR. Unfortunately, most people are too busy or simply aren’t proactive enough to think that far ahead.

When a dispute does arise, often an attorney is consulted. A diligent attorney will contact the other side, or the legal representative for the other party, and attempt to resolve the matter prior to initiating litigation. This form of counseling and prelitigation negotiation is also a form of ADR.

Once a lawsuit has been filed, the attorneys are required to provide clients with an ADR information package. This contains details concerning the many alternatives to a court trial that are available for resolving lawsuits. Some of the more common forms of ADR include:

- Early neutral evaluation –in this form of ADR, an experienced, impartial attorney, with an understanding of the subject matter of the underlying lawsuit, hears a summary of the case, and then writes an evaluation that typically prompts further settlement discussions.

- Private Judging – this is commonly referred to as “rent-a-Judge” and is often utilized by large corporations that are involved in cases involving matters that the parties would rather not litigate in the public eye, or not wait for the lengthy litigation process like ordinary plebeians.

By far the most common forms of ADR are mediation and arbitration. Often these two are used interchangeably. However, they are quite different from one another.

Arbitration is similar to the trial court process in that a neutral third party, such as an attorney, retired judge or an individual with subject matter expertise, listens to the parties present evidence, weighs that evidence and then renders a decision, or arbitration award, in favor of one party or the other. Depending on the circumstances, the arbitration award can be binding or nonbinding.

Mediation is a process whereby a neutral third party assists disputants in better understanding all aspects of the conflict between them, and then by utilizing that knowledge, helps the parties develop an acceptable resolution of their differences.

The key distinction between these two forms of ADR is that arbitration results in a decision being imposed on the parties, following an evaluative analysis by a finder of fact. Mediation, on the other hand, produces an outcome that is entirely of the parties’ making. The parties have full control of any outcome – or whether there is to be an outcome. It is no wonder that 80% of the cases brought to mediation settle during that process.

Finally, civil cases that have not settled during the course of litigation typically have one last chance to be resolved short of trial. Almost every civil case must include a mandatory settlement conference before the trial judge or a settlement mentor. During this conference, the judge or settlement mentor strongly encourages the parties to settle rather than taking the case to trial. Settlement conferences have several benefits. First, the case might settle. Second, the trial judge is able to get a preview of the issues and is therefore in a better position should the case proceed to trial.

It should be clear that without ADR, the 90% of cases that currently vanish during the litigation process would be clogging our trial courts, and it would likely be our grandchildren who would be trying these cases many years down the road.


The information herein is intended to be general in nature and does not constitute legal or tax advice. Send column suggestions to info@SolanoLawGroup.com, fax to Gizzi & Reep, LLP at 707-748-0921 or mail to 940 Adams Street, Ste. A, Benicia.