While we have an excellent judicial system, it is over burdened by a high volume of cases, which often results in unreasonable delays. Also, the Rules of Evidence and the Rules of Procedure, as well as substantive law, have become increasingly complex. This can result in a high cost to the parties to the conflict which may be unaffordable for them.
A large number of cases genuinely need to be in court. Anytime either party to a conflict insists upon a position which is irrational or one sided, or refuses to respond, then the authority which is given to the courts needs to be used to force that individual to accept and abide by a just result.
However, it is probably true from our observation that at least half of the civil cases currently being resolved in court could be better resolved out of court by an alternative system. These cases tend to go to court out of default, rather than by design, because the parties to the conflict are not sufficiently aware of their alternatives.
The term “Alternative Dispute Resolution” (ADR) simply means a manner by which a dispute may be resolved as an alternative to litigation. While there are a number of types of ADR methods, the most common and most useful are Mediation and Arbitration.
Mediation is a process whereby the parties to a dispute meet with a neutral facilitator who guides their discussions and assists them in reaching their own resolution. The Mediator has no authority to bind the parties to anything, but a written agreement is the usual result.
Arbitration is a process whereby the parties to a dispute voluntarily grant authority to either a single arbiter or a panel of arbiters to make a binding decision which will be upheld by the courts.
It is possible and often recommended to combine the two processes so that the parties move into an arbitration phase only if mediation is not first successful and only upon issues which have not been resolved in mediation.
While our judges are highly qualified and experienced, there is no reason to presume that an experienced and qualified mediator/arbiter cannot help to produce just as insightful a result.
Parties to ADR are always encouraged to obtain independent legal counsel, however, they are not required to do so. A large percentage of parties to ADR proceedings choose not to obtain independent legal counsel but instead to place their trust in the mediator or arbiter. That person is permitted to provide legal information but may not offer legal advice. The information can include an opinion as to likely outcomes in court. If the case is complex or arbitration is chosen, then the involvement of counsel is particularly recommended.