When parties become involved in a legal dispute, the court system, provides a forum to resolve that dispute in the form of a trial followed by a verdict. However, both federal and Massachusetts state courts provide another option. That option is Alternative Dispute Resolution (ADR), a system designed to help parties reach a mutually agreeable settlement with less risk and expense than a trial. ADR offers benefits to both the litigants and the court system. For the litigants, ADR offers the possibility of avoiding some of the uncertainty of trial. ADR may allow the litigants to save time and money and it certainly provides litigants with a greater amount of controlover the disposition of the action than they would have in the traditional litigation setting. For the courts, ADR helps alleviate the problem of expanding court dockets, thereby reducing costs and the backlog of cases that currently plagues the courts. There can be no doubt that, in Massachusetts and much of the rest of the country, ADR has taken its place alongside the traditional trial as an officially sanctioned method of dispute resolution. Both the Massachusetts state courts and the U. S. District Court for Massachusetts require civil litigants to consider using ADR. The courts enforce this requirement byinsisting that attorneys certify on civil action cover sheets that they have discussed ADR options with their clients. Therefore, while academics may continue to debate the effectiveness of ADR, for civil litigants in Massachusetts, ADR is a reality and their attorneys must be prepared to deal with it.

What is ADR?

The Massachusetts state courts define ADR as “the generic term used to describe dispute resolution procedures such as arbitration, mediation and negotiation, all of which have a common aim of eliminating the need for a traditional trial.” There are many different processes that fall under the umbrellaterm of ADR. In its 2000 “Alternative Dispute Resolution Plan,” the U. S. District Court for Massachusetts lists nine different “court sponsored alternative dispute resolution options,” including mediation, early neutral evaluation, and summary trial. The Massachusetts state courts also offer a widevariety of ADR options. In their publication, “A Guide to Court-Connected Alternative Dispute Resolution” the courts list seven different ADR processes, including arbitration, mediation and case evaluation.

ADR is not limited to court-administered programs. Although the Massachusetts state courts and the U.S. District Court for Massachusetts offer court-administered ADR programs, litigants may, and often do, choose to go outside of the courthouse forADR. In Hampden County, for instance, the local bar association offers a variety of services for civil litigants, as do several private, for-profit services. Additionally, small claims litigants often take advantage of the free services of a non-profit mediator. Considerations that come into play when choosing an ADR provider include the cost of services, availability and the preferences of the parties. While a court-administered program may be free, the litigants may not be able to agree on a neutral party to conduct the process. In this case, going outside the courthouse, even though it may involve a fee, may be the only option short of a trial, with all its costs and uncertainties.

Arbitration and Mediation

Arbitration and mediation are two of the primary avenues used to resolve legal conflict outside of the traditional courtroom setting. They are also among the most time-tested of the ADR processes.

Mediation as an alternative to litigation dates back at least to the 1960’s and what became known in legal circles as the “contemporary mediation movement.” Since then, the process has grown in popularity. The U.S. District Court for Massachusetts describes mediation as “a process in which the parties meet with a designated mediator to isolate disputedissues, to develop options, and to consider settlement alternatives, in an effort to reach a consensual agreement that will accommodate the needs and interests of all parties.” There is no guarantee that mediation will resolve the case because the mediator does not issue a decision but rather acts as a facilitator. In other words, mediation is a coordinated effort to bring the parties to a voluntary settlement through the use of a neutral party.

Mediation programs in both the federal and state courts in Massachusetts boast a high level of success in reaching a resolution. The U.S. District Court for Massachusetts reports a settlement rate of about 62% for those cases actually mediated in its court-connected program.1 The Massachusetts Trial Courts report settlement rates ranging from 60% to 90% depending onthe type of case and the court department where the case is being heard.2 It is important to note that settlement does not necessarily mean success from the client’s perspective, but if a compromise between the parties is a possibility, mediation can be an effective tool for reaching that result.

Statutory recognition of arbitration dates as far back as 1920, with the passage of the New York state arbitration law, followed by the Federal Arbitration Act in 1925. The Massachusetts state courts describe arbitration as “a process in which the parties select a neutral person (an arbitrator) or a panel of three arbitrators. The arbitrator renders a binding or nonbinding decision at the request of the parties after hearing arguments and reviewing the evidence.” Unlike mediation, arbitration, if it is binding, offers the litigants a guaranteed end to the case because the neutral party renders a decision. Therefore, arbitration is likely to feel more like a trial to the parties than mediation. Arbitration, however allows the parties more control over the process through which a decision is reached than they would have in a traditional trial. Parties are able to set the rules for the arbitration, allowing themmore control over things like scheduling, admission of evidence, selection of an arbitrator, setting for the arbitration and sharing of expense than they would have in a traditional courtroom setting.

The decision rendered by the neutral party is the chief factor distinguishing arbitration from mediation. Arbitration is considered a determinative process whereas mediation, even when the neutral party offers some opinion on the merits of the case, is still primarily a facilitative process.

While arbitration is not offered in the courtconnected program offered by the U.S. District Court, it remains a popular method of dispute resolution in the Massachusetts state courts. The fact that there is generally no right of appeal from the decision of an arbitrator makes the option unattractive to some civil litigants. Especially in situations where there is nodisagreement as to liability, however, arbitration is a popular choice for litigants who are anxious to avoid going to trial.

Case Evaluation and Summary Trial

Two other ADR methods represent variations on these two processes. Case evaluation, offered in the Massachusetts state courts, is similar to mediation except that the goal is not so much settlement but arriving at a figure which indicates the settlement value of the case in the eyes of the neutral party. Case evaluation also exists in the U.S. District Court forMassachusetts, but is known as “early neutral evaluation.”

Summary Trial is similar in procedure to arbitration, but similar to mediation in the role the neutral party plays. After an attorney makes an abbreviated case presentation before a judge, that judge will immediately offer his thoughts on the case. There is no formal decision, however, and the judge’s thoughts are not binding on the parties. The judge may meet with each side in an effort to promote settlement. If the case does not settle at the summary trial stage, the judge who presided at that summary trial will not preside at the actual trial.

Conclusion

Clearly there are an array of options available to litigants who are flexible in their demands and interested in avoiding a full-scale trial. The fact that each party enjoys the right to go to trial provides the incentive for the parties to sit down at the bargaining table and, once there, to be realistic in their demands. While no sensible litigation plan depends solely on ADR to resolve the case, the stature that ADR has achieved in the courts means that no sensible litigation plan can ignore it either.

1. Telephone Interview with Amy Bressler Nee, Administrator of ADR Programs, U.S District Court for the District of Massachusetts (Jan. 27, 2003).

2. Telephone Interview with Timothy M. Linnehan, Coordinator of ADR Services, Administrative Office of the Trial Court (Jan. 27, 2003).