Alternative dispute resolution, or using mediation and arbitration in lieu of litigation, may be recommended under certain circumstances. According to Cornell University Law School’s Legal Information Institute, settling out of court pertains to neutral evaluation, negotiation, conciliation, mediation, and arbitration.
This type of process may be in the best interests of the parties involved due to time constraints, litigation costs, and other factors. The Legal Information Institute also states that engaging in alternative dispute resolution may be available in some, but not all, states. Alternative dispute resolution programs may be mandatory in some instances and voluntary in others.
According to the California Courts Judicial Branch, one of the primary advantages of alternative dispute resolution is that the involved parties are able to be in control of the process as well as the solution. Furthermore, when the involved parties work with a mediator, that mediator’s responsibility is to remain impartial. They do not make a decision for the parties involved, but assist them with communicating in order to resolve the dispute. Basically, the goal is to arrive at a mutually beneficial or agreeable outcome.
Alternative dispute resolution, according to the California Courts Judicial Branch, may be the appropriate way to handle a dispute when there is an existing relationship that the parties want to preserve. This would potentially include business associates or partners as well as family or neighbors.
Since emotions can often interfere with resolving disputes, The California Courts Judicial Branch indicates that alternative dispute resolution may be recommended to mediate the situation. When the parties are unwilling to compromise or cooperate, however, this may not be effective. When there is a history of abuse, victimization or other types of trauma, alternative dispute resolution may be contraindicated.
Some class action cases, unless modified by the parties involved, can be arbitrated. They are handled in the same way, for example, as FRCP 23, which includes certification, notice, and settlement. Other situations that may be potentially arbitrated include cases relating to the following situations and issues:
- Personal bankruptcy
- Intellectual property
- Civil rights
- Copyright and patent law
- License agreements
- Medicare fraud
- Personal injury
- Product liability
- White collar offenses
In addition, alternative dispute resolution may also be beneficial to develop a pre-litigation strategy, for conducting mock trials as well as trial consulting.
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