Strategic Considerations

Alternative Dispute Resolution ("ADR") covers a wide range of conflict resolution techniques, but it does not include trial in a public court of law. Instead, ADR serves as an additional branch of legal dispute resolution. ADR provides a means of concluding disputes between parties quickly and efficiently. Contrary to what is common in a court trial, ADR does not resolve a dispute by producing a winner and a loser. The parties may engage in private and voluntary ADR, or may participate in court-ordered ADR. Since ADR can provide benefits for the parties, considering the specifics of the underlying legal dispute, they can stand to benefit from seeking legal counsel at the outset of a legal conflict to discuss and seek information regarding the respective advantages and disadvantages.

The private procedures include, but are not limited to, party negotiations, mediation, neutral fact-finding, settlement conferences, and arbitration. Alternatively, court-ordered procedures may include, but are not limited to, case evaluations, mediation, arbitration, and mandatory settlement conferences. The parties can benefit from private programs because these programs generally remain confidential. In the event that the opposing parties agree to participate in ADR, they are responsible for coordinating and funding the procedures. However, in light of this responsibility, the parties also have greater control over the process and structure.

Furthermore, the parties who participate in voluntary ADR are able to control the privacy of the proceedings. For instance, in the event that the parties do reach a resolution, the terms of this final resolution, as well as, the resolution itself remain outside of public record. This is especially beneficial for high-profile individuals and business that wish to remain outside of the public eye. Indeed, business entities involved in legal disputes circling trade secrets would benefit from the opportunity to prevent the underlying secrets from becoming part of the court records.

The Alternative Dispute Resolution Act of 1998, codified under title 28 U.S.C. §§ 651, et seq. requires all federal district courts to develop and apply ADR services to all civil matters. As such, courts compel parties who file lawsuits in federal court to participate in some form of ADR process. The requirement to provide and engage in ADR has also crept upwards into the California appellate courts' system.

However, ADR is not appropriate for all cases. For instance, parties who prefer a jury trial are unlikely to participate in ADR because the opportunity to present the case before a jury stands to reap more favorable results. While parties may seek ADR services at any stage of a legal action, ADR is generally most effective during the early stages of a dispute. Indeed, parties may seek ADR before they file suit in a court of law. Furthermore, a party needs to weigh the various forms of ADR, and determine which is most conducive in light of the underlying circumstances.