Alternative Dispute ResolutionSICA-FICA also advises on and trains in the range of other commercial methods of Alternative Dispute Resolution including negotiation, facilitation, expert appraisal or evaluation, arb-med and med-arb, adjudication, mini-trial, rent-a-judge, court-referrals to mediation or arbitration and programmes of preventative conflict management.
Facilitation
Facilitation is used mostly (but not exclusively) in the public sector for collective bargaining. A ‘fact finder’ is given information by both sides and makes additional research into the matter before recommending a resolution. Facilitation is non-binding.
Assisted Negotiation
Assisted Negotiation is a term used where disputing parties are assisted in their negotiations by a third party who coaches or represents them in their negotiations. There is no formalised structure for this assistance. The third party may be partisan in that he is often acting on the side of one of the parties. There is no required qualification for this third party and there are no formal rules as to how the negotiations are conducted.
Early Neutral Evaluation
This process gives disputants a quick valuation of their case by an expert in the matter of their dispute who is independent of both it and the parties. Parties are moved away from unrealistic views of their case and settlement is promoted in a more realistic view of the dispute. Many jurisdictions allow such a process under their court rules, usually through a confidential case conference ordered by the court.
Early neutral evaluation generally reduces a case to a manageable size, clarifies relevant facts, allows a balanced evaluation of strengths and weaknesses, and provides an estimate of the likely damages. It also involves the parties, with beneficial effects up to and including settlement.
Fast-track Arbitration
This is ‘short-form’ arbitration where parties agree to limit the issues and/or set aside the rules of evidence and/or exchange short forms of points of claim and/or submit an agreed set of facts to the arbitrator who may not be required to give his reasons but must make his award within a prescribed time.
Med-Arb
Med-Arb combines some of the features of mediation and arbitration. Most med-arb proceedings require a third party first to mediate as many issues as possible, then to arbitrate the remaining issues. Sometimes, the same third party performs the two rôles, sometimes the rôles are split. A third variant requires a single third party to perform both rôles but restricts the mediation to joint sessions only.
Arb-Med
Arb-Med similarly combines features of both arbitration and mediation, this time using arbitration as a ‘filter’. A major issue – such as the meaning of a contract term or condition (or even its validity), or liability – is arbitrated and, once it is decided, any subsequent issues (quantum &c) are mediated. This way round, the rôle of mediator would not be compromised if the same person were to have been the arbitrator at the start and it is usually the case that the same person acts throughout the arbitration and the mediation.
Mini-trial
Mini-trial is where parties choose a third party to hear their dispute in a very shortened proceeding, pleadings being brief and to the point, and evidence being limited, frequently merely detailed submissions with minimal cross-examination. The ‘judge’ gives a quick decision on what has been presented and the parties then consider what to do about their dispute, considering that this purely advisory and non-binding decision is likely to be in line with what would result from full litigation or arbitration.
Summary Jury Trial
This is a court initiated process that uses a “mock jury” to give an advisory opinion. It is of particular value where constitutional rights are at stake, a precedent will be set, where government is a party or where there are numerous parties.
Summary jury trials, where permitted, have the advantage of being backed by courts and give judges the ability to assess jury responses. There are the same preparations as for a trial in court but at no more cost and they give the parties their day in court.
Moderated Settlement Conference
This process uses three experienced lawyers to evaluate the legal merits of a case. It can be applied to an entire case or just part and it is not promoted by an interest in settlement. It has no precedential value. Moderated settlement conferences are widely used in, for example, US state courts with abbreviated presentation.
Rent-a-judge or Private Judging
In some jurisdictions, a court can, if parties request it, refer a pending lawsuit to a private neutral party for trial with the same effect as if the case were tried in court. The verdict can be appealed through the usual appellate court system.
Private judging is provided for in statutes of half of the US states and is used: where there is a need for a quick decision; for highly technical or complex cases; for privacy; if the logistics of the case are difficult or costly. It allows parties to choose their judge with particular, relevant experience. It also allows parties to control their schedule and costs as well as being confidential, probably the most important commercial consideration.
Court Referrals
Court-annexed Arbitration is generally mandatory and non-binding. This contrasts it with generic commercial arbitration. Judges refer certain classes of civil dispute to arbitrators for their decision. If a party does not accept the arbitrator’s award, most of these schemes allow it to be appealed to a court hearing though this could result in costs being awarded against the appellant if the appeal does not achieve a minimum degree of betterment.
In many jurisdictions, courts are required to refer disputing parties to mediation. While some of these referrals are nominal, others require actual performance in mediation before parties can bring their dispute into the court for decision. This is now a potent force in English civil procedure where it has resulted in a losing party being awarded its costs because the winning party refused to mediate before the trial.
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