Alternative Dispute Resolution
Alternative Dispute resolution or “ADR” refers to any means of settling a dispute outside of a courtroom. Typically, ADR involves use of private dispute resolution services, although many courts have ADR procedures available to litigants. The most commonly used forms of ADR are arbitration and mediation.
Arbitration is simply a private hearing in which parties submit their dispute to an impartial decision maker rather than a judge. Parties can agree to arbitration either in advance – by including an arbitration provision in their contract – or after a dispute has arisen. In arbitration, an arbitrator or in some cases, a panel of arbitrators, hears testimony, reviews evidence and issues a decision as to matters in dispute. The arbitrator’s decision is final and binding upon the parties. Both Washington and Federal law provide for judicial enforcement of arbitration awards. In other words, an arbitration award has the same force and effect as a judgment issued by a court.
Mediation is a process of structured negotiation using the services of a trained facilitator, or mediator. Mediation is usually voluntary, but is increasingly required by courts as a precondition to taking a case to trial. Additionally, many construction contracts now mandate an incremental dispute resolution process that includes mediation prior to arbitration or litigation. A mediator encourages the parties to evaluate the strengths and weaknesses of their positions while factoring in the costs and risks of proceeding with litigation. The goal is that the parties will arrive at a settlement that, while not everything they had hoped for, is better than what might have happened had the case gone forward to trial. Mediation is completely non-binding, meaning that the mediator has no authority to issue an award or impose a settlement upon the parties.
The attorneys at Durkee & Hennessey have successfully represented clients in hundreds of arbitration and mediation proceedings over a period of more than 25 years.