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Can’t We All Just Get Along?
Dispute resolution seeks to keep feuds out of court
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Business New Haven
11/2/1998
By: Debra A. Drexler
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BNH interviewed Kathleen M. Conway, an attorney in private practice in New Haven specializing in environmental law . She also serves as a mediator and teaches mediation technique.
What is alternate dispute resolution?
ADR, as it's called in the field, can range from a relatively simple process such as a fact-finding to complex negotiations, mediation or arbitration. These processes have one common thread, though: They are all approaches to settling legal disputes without using one or more parts of the traditional litigation system.
What is the difference between
arbitration and mediation?
Mediation is a voluntary process where the parties discuss the issues with the assistance of a neutral third party. There is no formal presentation of evidence and the role of the “neutral” is that of a facilitator, not a fact-finder or judge. Whatever is decided is legally non-binding unless the parties sign an order and agreement following the mediation. While the goal is to negotiate toward a mutually acceptable outcome, the parties can exit mediation during the process and cannot be forced to accept anything. Finally, whatever is said is confidential and can't be used in court, should the mediation be unsuccessful.
And arbitration?
Here, you have a neutral third party - this can be an individual or panel - who actually decides legal issues and, in either a binding or non-binding arena, resolves the dispute for the parties. The arbitration forum is closer to litigation: It is adversary, witnesses present testimony and the result may be wholly unsatisfactory for one or both parties. Also, if it is non-binding, the parties still bear the costs of litigation.
What are some advantages to ADR?
Where the result is either binding or satisfactory to all involved, the savings in cost and time are enormous. Mediation is “party-centered”; it helps the participants to define which issues are really in dispute, and allows the parties flexibility to create a resolution that might not be available in court. Quite important, too, is that the process gives the participants the opportunity to be heard, to have “their day in court” without the expense and potential consequences.
Is there in Connecticut any type
of business dispute where it is mandatory that ADR be used for resolving a dispute?
Not in Connecticut, but New York, New Jersey and Massachusetts have some mandatory ADR. For example, New Jersey's Department of Environmental Protection has a separate ADR section for permitting and enforcement matters, as does Region I of the federal Environmental Protection Agency.
Even though it's not mandatory,
are there any areas in the business arena where ADR is accepted and widely employed?
Labor and management regularly use the process during negotiations. Also If your business is a member of the Better Business Bureau and there is a dispute with a consumer, arbitration is available.
What about in the human-resources?
There are areas where it is the policy of an individual business entity or government agency to use ADR. For example, the U.S. Postal Service has a pilot program called “Redress” which uses transformative mediation to resolve human-resources disputes. Also, health-care access may trigger the need for dispute resolution, such as where an employee is unsatisfied with the determination of a provider and an appeal process is provided.
What is transformative mediation?
This focuses on changing the behavior of the participants to enable them to learn how to resolve their disputes. It involves helping the participants to foresee the consequences of their actions and determine a way of communication which will resolve future disputes in the workplace.
Are there cases where ADR may not be advantageous?
I would not suggest ADR, for example, where a case involves constitutional issues or consumer protection - i.e., where lemon laws are involved.
Where would a business owner go if interested in ADR?
There is a list of mediators in local superior courts. . There is an ADR section of the Connecticut Bar Association; the American Arbitration Association; Better Business Bureau and the Yellow Pages all contain lists of candidates.
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