When it comes to the law in America, don’t look to Hollywood for authenticity. The glamour and action of the courtroom are much higher on your television screen than it is real life, and what legal dramas rarely show their viewers is the high price of litigation. Also absent are the backlogged dockets of our legal system—the tedium and frustration of waiting for a case to go to trial don’t exactly get a close-up.
To spare parties from the expenses and challenges of the courts, several types of alternative dispute resolution have come into play. These settle the same issues that the court would, but with lower costs, higher efficiency, and no pretense of high drama. Here are the methods that businesses and families are increasingly turning to.
To keep a case from going to court, it’s common for parties to negotiate an outcome among themselves without intervention. Negotiating a settlement is the most common form of alternative dispute resolution. If you’ve ever been chosen for jury duty, you probably know that many of the cases you’re slated to hear are “settled on the courthouse steps” just before trial, leaving you to go home without hearing a case.
When two parties cannot reach a conclusion themselves, a third may be necessary. Arbitration should be familiar to sports fans, who know it as an option for players and teams with conflicting offers for a contract extension. Arbitration is similar to a trial in that both parties present a case to a neutral third party—in this case, an arbitrator rather than a judge—who considers both arguments and sides with one or the other. Both parties will agree prior to arbitration that an arbitrator’s award will be legally binding.
Not everyone sees the world in black and white. For parties who don’t want the all-or-nothing approach of arbitration, mediation seeks to find the shades of grey. As a neutral third party similar to an arbitrator, a mediator will work with both parties to achieve mutually beneficial outcomes, which may require compromises that arbitration does not allow. Mediation has become a popular alternative to litigated divorce in cases where both sides can trust each other to work together and reach agreements amicably.
The most complex type of alternative dispute resolution is collaborative practice, or collaborative divorce, which most closely approximates a trial in the sense that each side has its own legal representation. Like mediation, both parties try to achieve win-win situations that litigation will not attain. This alternative dispute resolution is a popular choice for finalizing divorces but is also gaining popularity in other aspects of family law.