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12/2/2015 » 12/4/2015
2015 Bloethe Tax School

Whistleblower Actions (Telephone CLE)



Alternative Dispute Resolution
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Alternative Dispute Resolution "Other Ways of Solving Problems"
One of the most important roles a lawyer plays is that of problem solver. Indeed, most people do not even think about seeking or needing a lawyer unless they have a problem and think an attorney may be able to help them resolve it. Usually, people believe attorneys can only solve problems by going to trial and presenting cases to a judge or a jury, and, in some situations, a trial is in fact the only way to resolve a conflict.

In a majority of situations, however, there are other ways attorneys can help their clients solve their problems that do not involve a courtroom trial. The alternative is a process called alternative dispute resolution ("ADR”), and, in the last several years, it has expanded the ways attorneys can help people solve problems and settle disputes.

How can you use an ADR process to solve your problems?
First, it is necessary to seek a lawyer’s advice. Although not involving a trial with a judge and a jury, ADR can be a complicated process and usually requires the aid of a lawyer. Plus, with an attorney’s advice, it will be easier to select which ADR process is right for your problem and how to best achieve your desired results. A few ADR methods are described below:

One of the most commonly used types of ADR, mediation, involves both parties and one neutral mediator in the problem solving process. Compared to the formal courtroom procedure, the mediator meets with, and listens to, both sides, allows each side to offer creative solutions to the problem, and then helps the parties communicate so that the parties can attempt to find agreeable, creative solutions.

Arbitration is another commonly used type of ADR. In an arbitration, an independent, third person presides while both sides present their respective arguments and evidence, and then the arbitrator decides the best solution for the problem. In many ways, an arbitration is similar to a traditional trial, except the proceedings are less formal and, unless the parties agree beforehand, the arbitration decision is not binding on either party. If the decision is not binding, the arbitration decision may be used in fostering later settlement discussions between the parties.

Early Neutral Evaluation
In an early neutral evaluation, both sides select an experienced third party, much like in an arbitration, to listen to both sides present their arguments and evidence, and then the experienced third party tells each side of the various strengths and weaknesses of their cases. This evaluation usually occurs very early in a lawsuit and can help lead to more effective settlement discussions.

This method of ADR is most like a real trial, but, in this trial, three evaluators decide the outcome. Each side picks one evaluator, and the parties agree on the third evaluator. At the end of a less formal and less expensive mini-trial, the three evaluators tell each side the main issues facing the parties and attempt to help the parties reach a settlement agreement.

Other ADR Processes
Other ADR methods and variations on the methods are available to help people solve problems. Indeed, one of the most important qualities of ADR is that the processes can be changed to meet the specific needs of each particular problem.

Can ADR be used in all situations?
ADR is intended to be a flexible tool used by all types of people with all types of situations. From complex business transactions to personal injury claims, ADR can help people resolve all kinds of problems. In fact, ADR has been so effective in reaching solutions that the Iowa State Legislature has enacted a statute, Iowa Code Section 598.7A, encouraging the courts to make mediation mandatory for most couples seeking a divorce.

Can ADR be used at any time?
At any stage of a conflict, an ADR process is available to help people find solutions. In some situations, parties may try an ADR process at the early stages of litigation, conclude that it was ineffective at that point, and then try another ADR process after more information has been accumulated and shared between the parties.

Why use ADR when you are unwilling to agree to anything less than your full demands?

There are several reasons why ADR is still a useful tool even when people do not believe that they are willing to even consider any type of compromise.

First, in a trial, the only certainty is that not everyone in the courtroom is going to get the result each of them desired. With ADR, the resolution of the problem is strictly within your control and not that of the judge or jury. Indeed, ADR allows you to take part in the decision making process to find a solution to meet your needs. Plus, with ADR, it is possible that creative solutions will be offered which you and your attorney did not even consider that meet the needs of each party more effectively than any court decision.

Second, even if you have the best attorney and believe you are correct on the factual and legal issues, it is possible that at the conclusion of a courtroom trial (or appeal), you will have spent more money on fees, expenses, and costs than you were awarded (or can collect) as damages. With ADR, you may compromise and receive less monetary compensation but still gain more than if you had received a full judgment because you likely will have less invested in the problem-solving process.

Although ADR is not the perfect solution for every conflict, it should be considered each time a person has a problem and seeks the advice of an attorney. ADR can save money and time, and can sometimes result in better solutions than achieved in the formal litigation process.

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