Of the several ADR techniques, the best established is arbitration, an
agreement to use a private individual to decide the dispute and determine the
damages, if any. If a party refuses to comply with an arbitration order, it can
be enforced as a contract in the usual courts. The American Arbitration
Association (AAA) provides a uniform set of rules for arbitration and a roster
of approved arbitrators. In the usual agreement, each side chooses one
arbitrator and these two arbitrators choose a third. Because there is a
requirement that arbitrators have legal training, these arbitrators are often
attorneys or retired judges.
The other techniques do not impose a binding settlement but are intended to
help the parties resolve the dispute themselves. In mediation, each
party agrees to share information with an impartial person who seeks to find
areas of agreement that might otherwise be overlooked. In the simplest
situation, the parties actually have common objectives but do not realize it.
For example, a plaintiff may be willing to settle a $300,000 claim for as
little as $100,000. The defendant, who has offered only $10,000 to the
plaintiff, may be willing to pay as much as $110,000. In a lawsuit, these
parties might expend enormous resources on pretrial preparation before reaching
a settlement. The mediator can help them resolve the dispute without this
prolonged warfare.
Mini-trials allow the parties to see what their cases will look like to
a jury. These are used most commonly in disputes between corporations, but they
can be useful in medical business disputes. In a mini-trial, each side's
attorneys and experts present a brief (usually only a few hours) synopsis of
their case. This is presented to the parties themselves rather than an
arbitrator. The value of a mini-trial is that it allows a party to see the case
through the eyes of the opposing counsel. In litigation, parties are carefully
isolated from the opposing counsel until the trial itself. This makes the
parties dependent on their own attorneys for information about the case. The
attorneys, however, may not know the other side's strategy. More fundamentally,
it is difficult for attorneys to remain objective while zealously representing
their clients. The mini-trial ends this isolation and gives both parties more
information about the nature of their case.
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