Alternative Dispute Resolution (ADR)

Overview & History

Alternative Dispute Resolution (ADR) is an increasingly popular option that allows people to resolve disputes outside of court in a cooperative manner. ADR can be faster, cheaper and less stressful than going to court.

Most importantly, the use of ADR can provide greater satisfaction with the way disputes are resolved.

ADR has been gradually evolving within the Fresno Superior Court for the past several years. In 1999 the Court recognized a need for greater public access to dispute resolution for cases and established an ADR Department. This department assists parties by providing information regarding ADR processes and services.

Additionally, in 2006 a Case Management Conference (CMC) order was implemented requiring parties in general civil cases to participate in ADR prior to trial. This order and supporting ADR forms can be found in the Forms, section . Also participation in ADR does not eliminate the need for proper and timely filing of case documents, such as an Answer to a Complaint.

Disputes

ADR techniques have been used successfully in a variety of disputes involving individuals, small and large businesses, government, and the general public. Various types of ADR processes are available depending on the nature of the dispute. Many types of conflict often lend themselves to an alternative and informal method of dispute resolution. Some examples of disputes often settled by ADR include  but are not limited to:

  • Business disputes- contracts, partnerships
  • Property / Land use disputes- property transfers, boundaries, easements
  • Family disputes- divorce, property, custody, visitation, support issues
  • Consumer / Collection disputes- repairs, services, warranties, debts
  • Employment disputes- employment contracts, terminations
  • Landlord/tenant disputes- evictions, rent, repairs, security deposits
  • Neighborhood disputes / Relational disputes or other civil or personal conflicts
  • Personal Injury / Insurance disputes- accidents, coverage, liability

Processes:

The most common forms of ADR are Mediation, Arbitration, and Case Evaluation. In most ADR processes, a trained and impartial person decides or helps the parties reach resolution of their dispute together. The persons are neutrals who are normally chosen by the disputing parties or by the court. Neutrals can often assist parties in resolving disputes without having to go to court or trial. Below is a description of commonly used processes:

Mediation -  What is Mediation?  (Video)

In mediation, the mediator (a neutral) assists the parties in reaching a mutually acceptable resolution of their dispute. Unlike lawsuits or some other types of ADR, the mediator  does not decide how the dispute is to be resolved. The parties do. It is a cooperative process in which the parties work together toward a resolution that tries to meet everyone's interests, instead of working against each other. Mediation often leads to better communication between the parties and lasting resolutions. It is particularly effective when parties have a continuing relationship, such as neighbors or businesses. It also is very effective where personal feelings are getting in the way of a resolution. Mediation normally gives the parties a chance to express their concerns in a voluntary, confidential process while working towards a resolution.  The mediation process is commonly used for most civil case types and can provide the greatest level of flexibility for parties.

Arbitration -  What is Arbitration?  (Video)

In arbitration, the arbitrator (a neutral) reviews evidence, hears arguments, and  makes a decision (award) to resolve the dispute. This is very different from mediation whereby the mediator helps the parties reach their own resolution. Arbitration normally is more informal, quicker, and less expensive than a lawsuit. In a matter of hours, an arbitrator often can hear a case that otherwise may take a week in court to try. This is because the evidence can be submitted by documents rather than by testimony.

  1. Binding arbitration: Usually conducted by a private arbitrator, this process takes place outside of the court. "Binding" means that the arbitrator's decision (award) is final and there will not be a trial or an opportunity to appeal the decision.
  2. Non-binding arbitration: May be ordered through the court (Judicial Arbitration) or conducted privately. In this process, the arbitrator's decision is “not binding.” This means that if a party is not satisfied with the decision of the arbitrator, they can file a request for trial with the court within a specified time. However, depending on the process if that party does not receive a more favorable result at trial, they may have to pay a penalty.

Case Evaluation -  What is Neutral Evaluation?  (Video)

In case evaluation, the evaluator (a neutral) gives an opinion on the strengths and weaknesses of each party's evidence and arguments. Each party gets a chance to present their case and hear the other side. This may lead to a settlement, or at the least, help the parties prepare to resolve the dispute later. Case evaluation, like mediation, can come early in the dispute and save time and money. The case evaluation process is most effective when parties have an unrealistic view of the dispute, need outside assistance in determining case value, and or have technical or scientific questions to be worked out. This process is sometimes used in combination with mediation or arbitration.

ADR Agreements:

Agreements reached through ADR are normally written and can become binding contracts that can be enforced by the court if the parties agree. Parties may choose to seek the advice of an attorney as to your legal rights and other matters relating to the dispute before finalizing any agreement.

ADR Process Selection & Information:

There are several other types of ADR. Some of these include conciliation, settlement conference, fact finding, mini-trial, Victim Offender conferencing, and summary jury trial. Sometimes parties will try a combination of ADR types. The important thing is to find the type of ADR that is most likely to resolve the dispute. Contact the ADR department staff for assistance for additional information and referral to services appropriate for each specific case.

Advantages & Disadvantages of ADR:

Advantages

  • Often quicker than going to trial, a dispute may be resolved in a matter or days or weeks instead of months or years.
  • Often less expensive, saving the litigants court costs, attorney's fees and expert fees.
  • Permits more participation and empowerment, allowing the parties the opportunity to tell their side of the story and have more control over the outcome.
  • Allows for flexibility in choice of ADR processes and resolution of the dispute.
  • Fosters cooperation by allowing the parties to work together with the neutral to resolve the dispute and mutually agree to a remedy.
  • Often less stressful than litigation. Most people have reported a high degree of satisfaction with ADR.

Because of these advantages, many parties choose ADR to resolve disputes instead of filing a lawsuit. Even after a lawsuit has been filed, the court can refer the dispute to a neutral before the lawsuit becomes costly. ADR has been used to resolve disputes even after trial, when the result is appealed.

Disadvantages of ADR

  • ADR may not be suitable for every dispute.
  • If the ADR process is binding, the parties normally give up most court protections, including a decision by a judge or jury under formal rules of evidence and procedure, and review for legal error by an appellate court.
  • ADR may not be effective if it takes place before the parties have sufficient information to resolve the dispute.
  • The neutral may charge a fee for his or her services. If the dispute is not resolved through ADR, the parties may then have to face the usual and traditional costs, such as attorney's fees and expert fees.
  • Lawsuits must be brought within specified periods of time, known as Statutes of Limitations. Parties must be careful not to let a Statute of Limitation run while a dispute is in an ADR process.

Neutral Selection:

The selection of a neutral is an important decision. Please note that currently there is no legal requirement that the neutral be licensed or hold any particular certificate. However, some programs and the Court have established qualification requirements for neutrals.

*A list of trained neutrals is available to assist parties on a fee-for-service basis. These individuals have met the requirements to participate on the Court’s panel and provide private dispute resolution services.  Panelists are not Court employees; therefore service, style and expertise will vary by individual provider.

For cases involving self-represented litigants or those unable to afford a private mediator,  free or low cost mediation services are available through a grant-funded partnership between Fresno County Superior Court and the Better Business Bureau.

Fresno Superior Court local forms for ADR

Civil ADR

Family Law ADR