Alternative Dispute Resolution or “ADR” is increasingly relied upon by parties and the courts as a means to resolve disputes. The belief is that ADR represents a means to effectively resolve disputes for less cost and better efficiencies of time. In most situations this is true. However, ADR can also be costly and ineffective if certain protocols are not followed. An example is where the parties are so far apart in their positions that a chance for resolution is not practicable in the ADR process. This occurs many times where an insurance company is providing the settlement monies and they are unwilling to offer a sum to settle the case preferring instead to continue the litigation in the hopes that the other side will give up pursuit of the action due to a lack of resources or will to finish the lawsuit. This can also arise where the parties are emotional and are unwilling to be reasonable. And, since ADR is a consensual process and non-binding on the parties unless the parties have been prepared by their counsel to compromise, many times the process is ineffectual.
In order to give the ADR the best chance of success it behooves the parties and their counsel to 1) be prepared, 2) understand the other side’s positions and be prepared to refute them in an intelligent and reasonable manner, 3) submit a confidential ADR brief which helps the mediator understand the issues and better prepares them to do their job, 4) bring the core documents of the dispute, if the case is document oriented, to the ADR and be ready to explain why the documents require a finding in favor of your side or position and 5) understand in advance what it will take to reach a settlement acceptable to your side.
By following the steps outlined above you and your counsel will have the best chance of maximizing the benefits of ADR.