By Paul Janczewski
Alternative dispute resolution may be a modern-day term, but the concept of it--bringing disputing parties together to find a solution to their problem--has been around for centuries.
"I think there's been a form of mediation around since the dawn of man," said Douglas Van Epps, the director of the Office of Dispute Resolution for the Michigan Supreme Court's State Court Administrative Office.
He said in earlier times, people would have gone to their tribal elders to resolve problems, respecting their opinions and letting the experienced pro find some amiable middle ground that everyone could accept.
"Coming up with solutions that work for people has been going on for a long, long time," Van Epps said.
Now, in the legal forum, ADR has evolved into an umbrella term "of ways parties can resolve differences outside of a trial by judge or jury," said State Bar President Anthony Jenkins.
Jenkins and Van Epps said ADR can take on many different forms, but the key is finding a way to settle legal disputes short of trial. Some believe that using ADR saves time, money and aggravation, as well as helping to unclog a court system increasingly stretched to its limits by an aggregate of cases, and fewer resources, funds and employees.
While there is no question that ADR is here to stay, both said it is an evolving mechanism that will need to be tweaked and further studied to remain a viable option as legal processes go forward in our ever-more complex and litigious society.
Both experts agree that while there are many forms of ADR, the main three are case evaluation, arbitration, and mediation.
Michigan has used case evaluation since the 1970s, Van Epps said. In this process, parties present their case to a panel of authorized attorneys, who identify an award, and the parties have a time period to accept or reject the panel's findings.
"It's a process that's been fairly well entrenched in Michigan's legal culture," Van Epps said. "But it's still an adversarial process."
Jenkins said case evaluation is used to "encourage parties to work out their differences." But that method could end up costing the eventual losing party to pay out later in sanctions and fees.
Arbitration is another form of ADR where parties go before a fact-finder, Van Epps said, but it, too, is an adversarial process. Jenkins said arbitration panels often consist of three members, one pro-plaintiff, one pro-defendant, and one neutral. After conducting a mini-trial, the panel's results can be either binding, or non-binding.
Jenkins said an advantage here is "you may reduce the amount of time and resources you have to devote than if you went through a full-scale trial." But he said it also could be more protracted and time-consuming than case evaluation or mediation.
"There are trade-offs," Jenkins said.
Mediation is being increasingly used as the ADR of choice, Van Epps said.
"It's quite unique in the tool box of ADR processes," he said.
He said a neutral, trained person helps parties come up with their own solutions in a non-adversarial process. Van Epps said the mediator does not fact-find or impose his or her judgment, nor come up with what they believe where the solution lies.
"The skill of the mediator is in helping parties come up with solutions they can live with," Van Epps said.
Jenkins agreed, and said this is the method that is gaining in popularity in Michigan.
"The mediator tries to find a way to bridge the parties' differences," he said.
ADR, and mediation especially, is being used in nearly every civil matter, if that is the way parties want to proceed. It's also being used more and more in domestic matters, both said. And the use of mediation is being employed more often now before a lawsuit is filed.
Van Epps and Jenkins said the use of mediation is even being written into contracts, especially in the construction industry, "so mediation can be used at the earliest possible moment where people disagree," Van Epps said.
Jenkins said this method of trying to nip any future problems by agreeing to mediation was unheard of a decade ago.
"We're now seeing it as a way of avoiding the cost, time and aggravation of litigation," he said.
Of course, if all ADR methods fail, the specter of doing it the old-fashioned way--by filing a lawsuit and going to a judge or jury trial--still remains an option.
But both men say that only 2 percent of civil cases actually go to trial; 98 percent of matters are settled through negotiations, or dismissed through some other legal form.
And questions have arisen recently if ADR really is saving time and money in some civil matters. Van Epps said the SCAO is currently conducting a statewide survey of lawyers, judges and in several circuit courts various ADR processes, the timing of its introduction in cases, and the outcomes of each process. Informal discussions with some court officials believe mediation should occur earlier in the life cycle of a lawsuit, or that judicial involvement in a case should come earlier, or how mediators are selected, along with a host of other issues surrounding ADR.
"I'm hoping that our study will provide us with a lot more in-depth information about which cases are being ordered to which process at what time, so we can come up with best uses and practices," Van Epps said. "Our study will try to bring some science behind some of these considerations."
He said the survey will be completed by late summer or early fall and will provide a map of how effective some ADR processes really are. Jenkins said the study will hopefully give all involved a sense of what the trends are, what's good and bad about each method, and what can be done to enhance each one.
"In a way, we're all waiting to see what comes out of that, and how it impacts the practice in the whole ADR sector," he said.
Van Epps likened the ADR process to a medical problem where people go to a hospital for treatment. In the past, every civil case was treated as if it would go to trial, even though only two percent reached that stage.
"That would be akin to going to an emergency room and being told everyone needed surgery," he said.
But ER cases undergo triage. Some require further diagnosing, some require more testing, and some are treated and sent home.
"I think we're moving towards the direction of more triaging in the court system, given the limited resources, the consolidation of our state court system, the reduction in the number of judges and court resources," he said. "It will become more important, at the front end, to identify what process would really best help the litigants in this case get to what is most likely be a settlement. Or if what they really need is a trial, how do we get them there more expeditiously."
The future of ADR will entail earlier conversations about judicial intervention, what track should be pursued, and looking for "more creativity in how we manage cases," Van Epps said.
"I think we'll see quite a bit more use of collaborative processes, like mediation, in the years ahead here."
"We (at the State Bar) see ADR growing as a vehicle to resolve disputes and providing alternatives that will allow parties to more quickly and cost effectively get matters resolved," he said.
Van Epps said ADR processes in the future will allow parties to brainstorm and be creative in settling problems in non-traditional ways.
But he also said there may be other factors weighing in on the benefits of some ADR processes. As soon as a lawsuit is filed, the parties actually lose some control. Party satisfaction diminishes over time within the legal system, and often everyone feels like they've lost because no one got what they really wanted and they've spent a lot of time and money to get there.
And non-economic issues also come into play, such as the impact on their health over the issue. ADR, with some future adjustments, may hopefully become a collaborative process where the gap between traditional winners and losers narrows.
Van Epps is quick to say that he is not an opponent of cases going to trial.
"For me, it's quite the reverse," he said. "I'm concerned that we may be unable to get the cases to trial that really deserve to go there. An advantage is the earlier ADR may pave the way for more important cases to get to trial."
Van Epps said the ADR processes are in an evolution stage.
"We know a lot more these days about how to mediate effectively, and strategies for getting parties to identify options, than we knew even 10 years ago," he said.
Published: Wed, Jul 6, 2011