“‘Alternative Dispute Resolution’ [ADR] is a term covering the full range of techniques designed to resolve disputes short of trial in the public courts. ADR does not replace the court system. Certain cases will always have to be tried in a public forum. ADR complements the court system by making methods available to resolve some disputes at less cost, in less time, and often without the win-lose outcome that characterizes conventional litigation.”
“ADR methods include private, voluntary procedures, as well as court-annexed compulsory and voluntary programs: Private voluntary procedures: negotiation; mediation; neutral factfinding; organizational ombudsman; voluntary settlement conferences; mini-trial; contractual arbitration; and private judging.”
“Court-annexed compulsory and voluntary programs: early neutral evaluation (in some federal courts); mandatory settlement conferences; summary jury trials (in some federal courts); judicial arbitration; statutorily-mandated court mediation programs; voluntary court mediation programs established by local rule; and child custody mediation.”
“Advantages of Private ADR Over Court-Annexed Programs: As developed [here], there are distinct advantages of privately-conducted ADR over court-annexed programs: They are private: The proceedings are initiated by the parties, paid for by the parties and, for the most part, controlled by the parties. A sitting judge does not conduct or supervise any part of the decision-making process. The court’s role, if any, is limited to appointing a neutral at the parties’ request and enforcing the neutral’s decision; They are voluntary: The parties must consent to participate in a privately-conducted ADR proceeding. Consent may be conferred before or after the dispute arises. (This point applies, of course, only when comparing voluntary private mediations to compulsory court-annexed mediations, not when comparing voluntary court-annexed mediations); They can be initiated at any time: Privately conducted ADR proceedings can be initiated whenever a dispute arises; the parties do not have to wait until a lawsuit is filed; & They are flexible: A private ADR process can be tailored to fit the parties’ specific needs and the demands of the case. At one extreme, the parties can simply agree to negotiate in good faith before resorting to litigation in the event of a dispute. At the other extreme, the parties can commit themselves to a detailed, multi-step and ultimately binding process—with or without the expensive mechanisms of a court trial: enforced discovery; subpoena of witnesses; juries; findings of fact and conclusions of law; and appeal.”
[California Practice Guide: Alternative Dispute Resolution [citations omitted]]
