Alternative Dispute Resolution

Alternative Dispute Resolution, or ADR, provides people and companies with ways to resolve legal and interpersonal disputes outside of the courtroom, often far more quickly and with far less expense, lawyer time, delay, and anguish than litigation allows.

Parties who enter into contracts with each other can provide for ADR in their contracts, using ADR provisions or stepped dispute resolution provisions. Even if the disputing parties’ contract does not contain such provisions, or they do not have a written contract at all but are in conflict due to an accident, injury, or troubled business or personal relationship, they can still agree to pursue ADR instead of filing a lawsuit. And if they are already in litigation, they can pursue ADR at any point during the litigation, even during the trial itself or while the case is on appeal.

Our Experience

At Choquette & Simons LLP, we have significant experience with the many forms of ADR, having used them to help clients avoid or end the expense, time, and risk of litigation and appeals. We serve as advocates for our clients in ADR proceedings, and have helped dozens of clients prepare for and achieve favorable outcomes in such proceedings, in Colorado and across the country.

In addition, our partner Steve Choquette is a trained mediator, arbitrator, and neutral. In these capacities, he regularly helps parties whom he does not represent as a lawyer to resolve a variety of disputes, both before and during litigation. He brings to this work not only his more than 20 years of experience as a trial and appellate lawyer, but also a proactive, creative approach that helps parties reach resolutions. To review Steve’s ADR resume and consider him to help you or your client resolve a dispute, click here.

What Is ADR and Why Should I Consider It?

Parties often find that Alternative Dispute Resolution is preferable to a trial or an appeal because it gives them significantly more control over both the process used to resolve their dispute and the outcome they may achieve.

For example, the process used in litigation often involves written discovery (written questions that must be answered in writing, under oath), depositions (sworn testimony, taken in advance of trial and recorded by a court reporter), and motions practice (to dispose of some or all of the claims in the case without a trial, or to eliminate certain evidence from the trial). While these litigation vehicles can be very informative and change the dynamics of litigation, they are also expensive and time-consuming. Of course, so is the trial itself. ADR proceedings often allow parties to minimize or avoid such efforts and expenses, and yet still provide them with both their “day in court” and a good resolution to their dispute. In addition, litigation is almost always a public proceeding. Competitors, the general public, and the media have access to most of the pleadings and documents filed in court, not to mention hearings, trials, and appellate arguments. ADR proceedings are almost always private, and are often subject to confidentiality protections.

No lawyer or client can ever predict the outcome of litigation with certainty; no matter how positive the facts or law may be for one side, there is no guarantee that a judge or jury will find in favor of that side at trial or on appeal. Further, the remedies available at trial and on appeal are limited to what the law allows. For example, judges and juries typically cannot require that some portion of a jury verdict or court judgment be used to create a scholarship fund in memory of a lost loved one, or that one party will provide goods or services to the other party that the other party may actually need more than an award of money. Similarly, no judge or jury can compel one party to apologize to another for causing economic or personal harm, but such acknowledgements of responsibility and demonstrations of respect happen with some regularity during some forms of ADR proceedings. Thus, unlike in trial and on appeal, the outcomes available to the parties are generally limited only by the creativity of the parties themselves and the trained facilitator, mediator, or neutral who helps them resolve their dispute.

Forms of ADR

There are many kinds of ADR proceedings. Here is information about some of the most common ones, starting with non-binding processes (in which the parties resolve their dispute only by voluntary agreement) and then moving to binding processes (in which the parties empower a neutral third party to make a binding decision that resolves their dispute):

Negotiation is a direct conversation or exchange between parties, their lawyers, or both to reach or revise an agreement. Put another way, it is communication used to get something we want when another person has control over whether and how we can get it. Lawyers involved in negotiations almost always serve as advocates for only their own clients, and not for any other party to the conversation or exchange. In direct negotiation, there is no specially trained neutral to help the parties resolve their dispute; if the parties reach an agreement, they do it by themselves or through their lawyers. Negotiation is a voluntary and non-binding ADR process.

Early neutral evaluation (ENE) means an early intervention in a lawsuit by a neutral evaluator to narrow, eliminate, and simplify issues, and to assist in case planning and management. Settlement of the case may occur during the course of early neutral evaluation. ENE may happen pursuant to court order or an agreement of the parties. Even where a court orders parties to participate in it, the evaluator’s recommendations generally are not binding, and any settlement achieved is voluntary.

Fact finding means an investigation of a dispute by a public or private person or body that examines the issues and facts in a case and may recommend settlement possibilities or procedures. It is generally a voluntary, non-binding ADR process.

Mediation is a process of assisted negotiation in which a trained, neutral third-party – called a mediator – facilitates parties’ negotiations to help them resolve disputes and reach agreements. While courts sometimes order parties into mediation, the process is most often voluntary and is always non-binding. In Colorado, mediation generally ends the parties’ dispute only if they approve and sign a written agreement. Mediation is an informal and private ADR process, in which the mediator may meet with all of parties and their counsel together, or may meet with opposing sides separately (in what is called a caucus) to help determine their respective positions and interests, and potential ways to resolve their dispute. Mediation can often help diffuse a conflict and make it less personal, so the parties can better understand one another’s views and create mutually satisfactory solutions to their conflict rather than incur the time, expense, risk, inconvenience, and stress that accompany litigation. To review an article Steve wrote that discusses Colorado law on mediation, click here.

A mini-trial is a structured ADR process in which the disputing parties participate in a hearing before a neutral advisor. They present the merits of their positions to that neutral, and then work with him or her to formulate a voluntary settlement. Mini-trials are generally voluntary and non-binding.

A settlement conference is usually convened by a judge or magistrate other than the judge or magistrate who will hear the trial of the case if the parties do not settle. The settlement judge or magistrate hears from the parties about both sides of the case, may offer an informal assessment of the case, and leads a negotiation between the parties. Courts usually order parties to attend a settlement conference, but cannot force the parties to reach a settlement in such a conference; any agreement they reach is voluntary.

In a summary jury trial, parties make shortened, summary presentations of their cases before jurors seated to make findings concerning parts or all of the case. The parties decide whether those jurors’ findings will be binding.

In an arbitration, one or more neutral third parties called arbitrators –who are often lawyers or former judges but can also be non-lawyers with experience or expertise in the parties’ industries or the relevant subject matter – receive evidence and testimony from the parties at a hearing, and then enter an award determining how the dispute will be resolved. Arbitration awards are usually binding on the parties, and may be appealed or vacated only rarely and on narrow grounds. The party who prevails may submit the award to a court, which enters the award as a judgment so that the prevailing party may enforce it against the losing party. Parties often promise one another in a contract that they will arbitrate disputes, even before any dispute exists between them. These promises are called executory agreements to arbitrate. Or, parties may agree to resolve a dispute through arbitration after the dispute already exists. These promises are called submission agreements to arbitrate. To review two articles that Steve wrote concerning Colorado law on arbitration, click here: Part I | Part II

Med-arb is an ADR process in which parties first try to resolve their dispute through mediation. However, if the non-binding mediation process fails, they agree to have the mediator who helped them become an arbitrator, and enter a binding award deciding the outcome of the dispute.

Contacting Us

We welcome the opportunity to counsel our clients about how ADR works and which of the available processes may be best for a particular dispute.

In addition, people and companies who we do not represent as clients may retain Steve Choquette as a third-party mediator, arbitrator, or neutral.

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