Of the several ADR techniques, the best established is
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 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
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.