Alternative Dispute Resolution (ADR)
ADR is an alternative to having a court decide a legal dispute. ADR can be used to resolve any type of dispute including business disputes, workplace and employment issues, consumer disputes, personal injuries, and contract disputes. ADR includes arbitration, mediation, and Planned Early Dispute Resolution (PEDR).
ADR has several advantages. ADR processes can be faster, and often less expensive than traditional litigation. ADR is often preferred because it may allow the parties greater participation in reaching a solution and more control over the outcome of the dispute. And ADR processes are usually less formal and have more flexible rules than the trial court.
95% of all litigated cases are resolved by settlement and not by trial. The longer the dispute goes on the more likely it is that financial, emotional and physical stress takes a toll on the parties and their attorneys. A skilled mediator can help uncover solutions that you may not see on your own.
The goal of mediation is to help parties voluntarily resolve their dispute on terms they come to understand are fair and reasonable.
How we do this:
- Create a safe and respectful environment for parties.
- Facilitate communication and promote understanding.
- Focus parties on prioritizing their interests and options.
- Help parties assess the strengths and weaknesses of their positions.
- Assist parties evaluate the likely outcome in Court if they cannot reach settlement.
- Vigorous reality testing
Communication in mediation is confidential.
- Your mediator maintains the confidentiality of communication shared jointly or individually by parties and attorneys, unless a Court compels disclosure.
- Parties and attorneys sign an agreement to maintain the confidentiality of communication within mediation.
- Your mediator discloses communication shared in individual sessions only when the party making the communication consents to specific disclosures.
- Your mediator does not disclose the conduct of parties and attorneys.
- It is desirable that all the parties want to participate in mediation.
- But Court-ordered mediation can succeed if parties maintain an open mind about the mediation process and its potential for success.
- Preparation by attorneys in assessing the strengths and weaknesses of the case.
- Candor between attorney and client regarding the strengths and weaknesses of the case.
- Candor with the mediator.
- Preparation by the mediator.
- Participation by decision-makers.
- Although it’s desirable that parties be physically present at the mediation, sometimes decision-makers participate by telephone.
- When decision-makers must participate by telephone, it is important that your mediator and other participants agree.
- Mediation Statement: Please provide a confidential mediation statement to your mediator 7 to 10 days before mediation, setting out:
- Parties, the issues, relevant facts
- Strengths and weaknesses of the case
- Perceived value of the case
- Posture of the case including dispositive motions and amount of discovery conducted
- Prior settlement negotiations (formal or informal)
- Demands or offers previously exchanged
- Any other issues you want your mediator to know about
- Preliminary Meeting:
- Your mediator will meet separately with each of the attorneys prior to the mediation. This typically done by phone.
- This preliminary meeting allows you to discuss the upcoming mediation and nuances that you may not have included in your mediations statement, to respond to questions and concerns, and to ensure all parties agree to mediate and to the selection of the mediator.
- No fee is charged for the Preliminary Meeting
Typically, mediation consists of joint and separate caucus sessions.
- Joint Session: Your mediation typically starts with a joint session of the parties and attorneys.
- Your mediator describes the process, circulates the confidentiality agreement to be signed by all, and orients the participants to the facilities and amenities.
- Although rarely, parties or their attorneys sometimes make opening statements.
- Even though litigation can be stressful and emotional, your mediator requires that parties and their attorneys be respectful at all times.
- A joint session is never required and, where appropriate, one will not be held. Instead, the mediation begins with the parties and their attorneys in separate caucus rooms. Please discuss this with your mediator during the Preliminary Meeting.
- Caucus Sessions: Parties and their attorneys adjourn to separate meeting rooms.
- Your mediator meets with each party and their attorneys.
- Your mediator explores issues, concerns, interests and settlement possibilities with the parties and attorneys.
- Your mediator shares only what has been authorized.
- Through vigorous and respectful reality testing, and through creativity your mediator strives to help parties reach resolution.
- Settlement: When settlement is reached, our office assists parties and their attorneys memorialize their agreement in writing before parties adjourn.
- This can save future disputes or litigation about what parties agreed to.
- When settlement is not reached, your mediator is available to continue working with parties by telephone and email, or another session can be scheduled.
- Fee: Generally, your mediator is paid hourly for the time spent in mediation, plus reasonable time for preparation. An administrative set up fee is also charged.
- Please call our office for the current rates.
- We will consider a sliding scale in appropriate cases.
- We do not charge a fee for the Preliminary Meeting between the mediator and counsel prior to mediation.
- Mediation is typically conducted at the request of the attorneys. Accordingly, your mediator is retained by the attorneys. Therefore, payment of mediation fees and costs is the obligation of the attorneys, even though attorneys may recover those costs from their clients.
- Typically we require a retainer prior to commencing mediation. The retainer is typically the amount of fees that would be incurred for 8 hours of your mediator’s time. We will bill against the retainer and refund any amounts unbilled. If fees exceed the amount of retainer received, you will be billed for this amount.
- We participate in Settlement Week, usually held in October, when we provide mediation services at no cost to the participants.
- Costs: We will bill you for the actual costs incurred for your mediation, which includes items such as photocopies and meals. If the mediation is outside of the Albuquerque area, travel costs are also charged. Travel costs within the Albuquerque area are not charged.
- Meeting rooms: When our mediator’s facilities can be used, there is no charge for the rooms. When rooms at another facility are used, the actual cost is billed as costs.
- Who pays: Fees and costs are usually shared equally, but that is a matter to be agreed upon by the parties and attorneys prior to mediation.
Arbitration is a private process where disputing parties agree that one person (or a panel) can make a decision about the dispute after receiving evidence and hearing arguments. Unlike mediation, the arbitrator has the authority to make a binding decision about the dispute. The arbitration process is similar to a trial in that the parties make opening statements and present evidence to the arbitrator. But compared to traditional trials, arbitration can usually be completed more quickly and is less formal. After the hearing, the arbitrator issues an award. Some awards simply announce the decision (a simple award), and others give reasons (a reasoned award). Typically arbitration is binding. Binding arbitration is final decision that can be enforced by a court. A binding arbitration decision can be appealed, but only on very narrow grounds. Alternatively, and less commonly, non-binding arbitration is merely advisory, and the award is final only if it is accepted by the parties.
The Mendenhall Firm offers arbitration services.
When Karen Mendenhall is your arbitrator: Karen Mendenhall will arbitrate your case if any of the following three things occur: Either the Court has appointed her to be your arbitrator; or you selected her; or she is part of a panel of arbitrators selected either by another party or by other panel members. If you, or a panel, select Karen to arbitrate your client’s case, you will be expected to sign an arbitrator retainer agreement.
What can you expect? Typically, the arbitrator will set a scheduling conference with the attorneys. At that time deadlines will be set for witness disclosures, expert disclosures, discovery deadlines and dispositive motions. A date will be selected for the arbitration. The arbitrator may request briefing on issues raised by the arbitration. Unlike mediation, communication between the arbitrator and any of the parties (or their counsel) can take place only if all the parties are represented. Communication between the arbitrator and only one party is disallowed ex parte communication.
- If the arbitrator has been appointed by the Court, arbitration is conducted at no cost to the parties.
- Otherwise, the arbitrator is paid hourly for the time spent in pre-arbitration conferences with the attorneys, preparing for the arbitration, and in the arbitration itself.
- Unless the arbitration is court-appointed, the arbitrator requires a retainer fee to be paid in advance by parties or their counsel. The Firm will bill against the retainer and refund any amounts not billed. If fees exceed the amount of retainer received, the attorneys will be billed for that amount. We consider ourselves retained by the attorneys. Therefore, payment of the arbitration fees and costs is an obligation of the attorneys even if the attorneys expect to recover the costs of arbitration from their clients.
- The amount of retainer required will depend on the complexity of the case to be arbitrated.
- Typically the cost of arbitration is split among the parties. If other agreements have been made, please let us know.
- We will bill you for the actual costs incurred for your arbitration. This includes items such as photocopies and travel if the arbitration is conducted outside of the Albuquerque area.
- When the Firm’s conference room can be used, there is no facilities cost. When another facility is used for the arbitration, the actual cost will be billed to counsel.
Planned Early Dispute Resolution (PEDR)
PEDR is designed to enable parties and their attorneys to resolve disputes as early as possible. It is a major change from traditional dispute resolution through litigation. PEDR is designed to satisfy the parties’ interests, reduce the risks of litigation, and save time and money. More and more businesses are including PEDR provisions in their business agreements with outside entities and in their employment policies and agreements.
To be successful, both sides to a dispute must be willing to cooperate with the PEDR process. There is little risk in a PEDR process. Parties typically exchange information that would normally be discoverable in litigation. If the process is proceeding well and trust develops, the parties may be willing to exchange additional information that will allow them to make informed decisions about resolving disputes. Parties also typically agree to define the issues at stake and agree to what information is necessary to exchange. This is a marked contrast to extreme litigation positions that can inflame a dispute.
With PEDR, parties are able to take control of disputes at the earliest possible state, instead of merely reacting to actions by the other side or by courts. With their lawyers’ help, the parties can jointly design a process tailored to meet their needs and the address their interests.
If your business is interested in developing pre-dispute policies, The Mendenhall Firm can help you draft provisions tailored to your needs.
If your business is in a dispute and you want to try PEDR prior to filing litigation, The Mendenhall Firm can provide a neutral expert to assist with negotiations or to help manage the process and resolve difficult issues.
If you have questions about this relatively new area of alternative dispute resolution, please contact us.