Dispute Resolution Procedures
There are at least three ways cases can enter an ADR process:
Counsel, individually or jointly, can request an ADR referral at any time. The court encourages the use of ADR early as it may be potentially helpful.
You should consider ADR early, whether you are seeking assistance with settlement or case management. The cost of completing full "discovery" (the process of exchanging information) before an ADR session may outweigh the potential cost savings. If you are using ADR for settlement purposes, you should know enough about your case to assess its value and identify its major strengths and weaknesses.
Assignment to an ADR process generally does not affect the status of your case in litigation. Judges sometimes may postpone certain actions until after the parties have had an ADR session. If your case does not settle through ADR, it remains on the trial track.
Getting settlement discussions started
Sometimes parties or attorneys are reluctant to initiate discussions. The availability of multiple ADR options allows parties to explore settlement potential without the perception that they are hinting at or disclosing any weakness in their cases.
Saving time and money
An ADR process can provide a safe and early opportunity to discuss settlement before (and sometimes during and after) trial. However, for various reasons, direct settlement discussions often do not occur until late in the lawsuit after much time and money have been spent. These resources may be preserved if parties actively explore settlement as early as possible.
Providing momentum, and a "back up"
Often parties successfully negotiate an early resolution on their own. Even if you are negotiating a settlement by yourself, you can consider using an ADR process as a "back up" in the event the case does not settle. Meanwhile, knowing that you have a date for the ADR process may help by providing momentum and a "deadline" for your direct settlement discussions.
Overcoming obstacles to settlement
The adversarial nature of litigation often makes it difficult for attorneys and parties to negotiate a settlement. An ADR neutral may help overcome barriers to settlement by using information from each side selectively to:
Improving case management
The process of exchanging information can be expensive, time consuming, and may fail to focus on the most important issues in the case. An early meeting with a neutral may help parites agree to a focused, cost-effective plan to exchange information according to official procedures, or may help them agree to a more informal method.
Most cases in the courts are resolved without a trial. If you don’t raise your best arguments in settlement discussions, you risk failing to achieve the best result for your side. You need not reveal your trial strategy. However, you might find it useful to raise it in a confidential separate session with the neutral (available during mediation or a settlement conference). You and the neutral can discuss the significance of sensitive information and whether or when sharing it with the other side may help you in settlement negotiations.