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ADR On TrialBy Charles C. KellerOne of the most popular developments of the last 30 years in the legal community has been the trend toward "Alternate Dispute Resolution" (ADR). Use of arbitration, mediation, conciliation, facilitation, mini-trials - all alternatives to the adversarial atmosphere of a trial by judge or jury - have become widely accepted, even preferred. Courtroom trials are often viewed as expensive, time consuming and uncertain as to results. In most areas, senior lawyers, retired judges, specially trained mediators or arbitrators either individually or in panels have created a cadre of available ADR practitioners. The trend away from court trials is dramatic. In most of Pennsylvania, all disputed civil matters of less than $25,000 value go before a panel of three 3 lawyer-arbitrators, who decide the case. Either party may appeal and seek a trial by judge or jury. However, before getting into the courtroom, whether a contract or tort (civil wrong) case, the court may require mediation. A mediator is trained to encourage the parties to resolve their differences by negotiation. If unsuccessful, the court may use a mini-trial, or a pre-trial conference to resolve the matter. Many contracts, leases, construction or architectural agreements today are written with mandatory arbitration or other ADR arrangements. It is against this growing backdrop of ADR that some recent warnings have been sounded. In the State of California, recent cases between developers and home owner groups have resulted in the refusal of the courts to enforce a mandatory arbitration clause. The courts reasoned the provision was inserted by the developer, often buried in remote language, and offered on a "take it or leave it basis" so the court found the provision "adhesive," or unfairly inserted, and therefore unconscionable. But where such contracts involve interstate commerce, the Federal Arbitration Act (FAA) preempts state law, and mandatory arbitration may be enforced, as any other provision of the contract. Federal law thus appears to favor ADR. A further complication with contract mandated arbitration occurs when not all involved parties (sub-contractors, for example) are signers of the contract. Arbitration may provide only partial resolution of a dispute. In some states, a court may postpone the arbitration till other issues have been resolved in court. Sometimes resolution of a dispute by arbitration (even where agreed to in the contract) may not be in the best interest of both parties if later duplication of litigation is likely. Even resort to the milder technique of mediation is not always wise. Experienced mediators recognize certain shortcomings in this form of ADR. By agreeing to mediate, you may be signaling you believe your position is weak. So successful mediation is more likely when you are confident of your case and resort to mediation only to save time, money and achieve certainty and some control over the result. An unsuccessful mediation may be viewed by some as a waste of money, but this ignores the strengths and weaknesses you have discovered in the respective positions of the parties. In some instances, the parties have firm positions which are so far apart that mediator-assisted negotiation is clearly useless. But even then, one gives up any chance of settlement if you don't try assisted negotiation. The chance for successful mediation is enhanced if certain conditions occur. Realistic goals, a carefully selected mediator, a realistic procedure where both parties put forth their best case, and finally, requiring the attendance of those with the authority to make final decisions, these are the keys to successful mediation. Whether it be a lease, a building or home repair contract, a property sales agreement, an insurance policy, or a business agreement, look carefully for required ADR clauses. They may be just what you want - or such provisions may deprive you of access to judge and jury, which someone once thought important enough to place in our constitutions and laws. We at Peacock Keller just might be able to help you sort it out. |
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