Optimal ADR Process
American Military University
(7 Pages | 1.082 Words)
The ADR Process is often used to help guide individuals through disputes and to aide in resolving a solution at the lowest level. The idea is to give both parties the best possible resolution between interests. Not all methods will work for everyone and in the end many will still wind up in the Arbitration process, this paper will outline a process and then a solution for an individual dispute outlined in the reading.
Optimal ADR Process
The Alternative Dispute Resolution process is designed for individuals who have conflict that may benefit outside of the walls of a courtroom. It is a given that not all individuals will be able to achieve their goals in the interest to better serve them through this process, however it is up to their legal team to advise them in best possible outcome to achieve these goals. As we dive in we will touch base on a well thought out process and then we will try and resolve or lay out a course of action for a dispute between t individuals beginning in the alternative dispute process. The alternative dispute process will be referred to as the ADR process through the remainder of this paper.
The ADR Process
In order to determine what route to take we must first understand the needs and wants of the individuals or disputants and what the true intent of the dispute is. More often than not emotions are the driving force behind any conflict. It is up to the legal team to work with each individual to determine these goals. The goal of interest should remain both realistic and achievable. The legal team is responsible for ruling out any lawyer-client conflict in the very beginning as well as any bias that may be present through the process in order to provide the disputant the best possibly outcome. Once this has been determined it is time for the legal team to do a conflict diagnosis and try to lay out the plan for their client(s).
Negotiation and Mediation1
Once the legal team has been selected the first process is the negotiation process, this gives the legal team, the ability to go in and discuss terms with the other side without having to enter the courtroom. The contracts can be put in writing for both sides to see what each side is asking. For some this may actually be the end however, not the case for many especially if there may be perceptual distortion on either side of the conflict. In any case with all of this effort from the very beginning a disputant may still have a belief that they are entitled to more. In this case it will need to be determined if the disputants could benefit from the mediation process. The mediation process is designed to place both parties in to talks along with an unbiased mediator. The mediation process does not grant a legal ruling however, they mediators are retired judges or other members of the legal system that have a great understanding of the arbitration process and how to guide members into a peaceful resolution without having to move forward down the road. Again, if negotiation and mediation are unable to resolve the conflict then the next phase will have to begin.
Once the legal team has exhausted all methods of resolution the next and last resorts to the ADR process includes the summary or mini-trial. This allows the disputants to get a clear and idea of whether or not their individual interests can be met. With a summary trial the disputants case will be laid out in front of a board and will allow a member to see what their goals look like in a courtroom without actually going to court, this will save a disputant time and money and allow for them to see if they should move forward with their goals. Now, keep in mind this may be the end for individuals who may find out that they have unrealistic expectations and again may be the end however in the event that it is not we have the final process, known as the mini-trial. The mini-trial is a condensed version of a full trial and can in fact rule a legal binding decision. There is again an unbiased member who will research and hear testimony on both sides. It is important to note that this can be a risky step to take if the disputants are not ruled in favor of and decide to move forward with a full trial. By taking advantage of the mini-trial information that you may not want the other side to be made aware of in the event that you do go to full trial will be exposed, therefore it is very important for the legal team to clearly relate this information prior to. If the mini-trial fails to seek the intended goals of the disputant and does move forward to full trial all of the time and money that was invested in the mini-trial will essentially be for nothing.
Now that we have walked through a little of the ADR process, let us discuss the case study in the reading. We have an individual who has reached out to a legal team stating that his former employer had been involved in fraudulent behavior or business practice and that he was seeking compensation for it. The issues that are visible is that the client is highly emotional and may have unrealistic expectations or goals. The paralegal needs to do a conflict diagnosis and make clear to the client the individual perceptual distortion and that the goals maybe somewhat overly optimistic. The team should then explain the client options for negotiation and may facilitative or bargaining mediation would benefit in this case. Although negotiation and mediation would benefit there is a great deal of emotion involved but may help the client to feel more valued. If neither of these work it would be advised to move the client into a summary trial and then suggested to move into the summary trial and not a mini trial. Ultimately all of these decisions are left to the client. The legal team is there to advise in the event that the ADR process works. The conflict can be resolved a far lower cost.
Coltri, L. S. (05/2009). Alternative Dispute Resolution: A Conflict Diagnosis Approach, 2nd Edition. [VitalSource Bookshelf Online]. Retrieved from https://online.vitalsource.com/#/books/9781269514644/