Alternative dispute resolution (ADR) is an alternative to traditional litigation. Instead of seeking resolution from a judge in the inherently adversarial courtroom context, disputing parties attempt to resolve matters using alternative means, most commonly:
In Texas, the Texas Dispute Resolution Procedures Act governs the powers of courts to redirect an unresolved dispute to the ADR context. Under Texas law, ADR procedures may be initiated on the motion of a party, or a motion of the court itself. ADR can be a valuable resource for disputing parties. However, ADR is not always the appropriate forum for dispute resolution. In choosing between the traditional courtroom context and ADR, the counsel of an experienced Texas ADR attorney will be invaluable.
Mediation is one form of alternative dispute resolution. It is a process in which an impartial party – the mediator – prompts communication between conflicting parties. The goal is to facilitate reconciliation, understanding, and settlement among the disputing sides. As a neutral party, the mediator refrains from providing opinions or judgments during the mediation process.
Frequently, the judge in a traditional, adversarial courtroom setting will order disputing parties to participate in mediation. While a litigant is not required to retain an attorney for mediation, it is advantageous.
Arbitration is another means of resolving disputes outside of the traditional courtroom setting. While more formal than mediation, arbitration shares mediation’s goals of reconciliation and settlement. In this process, parties turn over their dispute to an impartial party – the arbitrator – to review evidence, discuss the disagreement with the parties, and ultimately issue a decision. Frequently, this form of ADR emerges from contract provisions that establish arbitration as the forum for dispute resolution. When arbitration pertains to a dispute where large sums are at stake, it is wise to retain the services of a skilled and experienced Texas ADR attorney to ensure that the evidence and nature of the dispute is communicated clearly and persuasively to the designated arbitrator.
Having an attorney serve as mediator, negotiator, or arbitrator can benefit the ADR process. This is because disputes often involve complex legal issues, such as intellectual property laws or detailed contract provisions. Additionally, where each disputing party will see the dispute in a light most favorable to its own interests, an attorney serving as a neutral mediator can use his or her legal expertise to bring balance and fairness to ADR proceedings.
Not every dispute should be resolved via ADR. To gain a deeper understanding of whether a dispute should be resolved in a traditional courtroom setting, or through mediation, negotiation, or arbitration, speak with one of the experienced Texas ADR attorneys at Orsinger, Nelson, Downing & Anderson.