Note:
If a red scroll bar appears on the right use it to see all headings.
ADR - How To Win Your Lawsuit Using Alternative Dispute Resolution?
Before we dig in, let’s define some of the abbreviations used in ADR. Alternative Dispute Resolution is lovingly called ADR. Why lovingly? Because it presents ways to resolve legal disputes outside the courthouse.
AON is Automated Online Negotiation. ODR is Online Dispute Resolution where ADR is held online. We’ll delve into each of these important out-of court processes as we explore the various methods of ADR.
Not so long ago, ADR was brick and mortar based. You all got together and hammered it out in person. As society has become more technology-based, so has dispute resolution in its varied formats. The most popular ADR processes now include:
- Automated Online Negotiation (AON)
- Mediation, Online or In-Person
- Arbitration, Online, In-Person or Document Only
Automated Online Negotiation (AON)
Automated Online Negotiation is a novel new online platform like an auction where the prize is a settlement. It’s quick. It’s inexpensive. It’s easy. And there is nothing personal about it, such a plus when disputing parties are at odds.
This type of negotiation, referred to as blind bidding, is available to anyone wanting to resolve a dispute that can be addressed by the payment of money. It is ideal for matters where liability is undisputed, where the unknown is how much money should be paid. It can also be utilized when liability is unclear to whittle a party’s offer to an acceptable number.
All that’s needed is you and your adversary online not even at the same time, hopefully motivated to dispose of this mess that will undoubtedly disrupt your peace of mind. It’s more like a game that doesn’t require much stratagem other than arriving at price points. It’s not heady, like Chess. It’s more like Bingo. When the numbers line up you’ve got a settlement.
🍪 Smart Cookie Tip: What’s so good about it is it takes you out of the blame game and into your business head. Numbers rule. What will it take to get out of this potentially stressful, time-consuming, expensive problem?
You can engage in it whenever settlement becomes an option. Just hop on the portal, and off you and your disputing party go. Do it once, do it four times, and make it your simple, easy tool to settle your dispute. AON could be just the thing to get your dispute resolved where other processes have failed.
It’s Do-It-Yourself
It’s DIY, the perfect solution for the legal self-helper. You and your disputing party can do it without attorneys, mediators, arbitrators, or the court. The usual paraphernalia associated with legal solutions is absent. No presenting your case, posturing, waiting around while everybody gets a turn.
It’s really worth a try. What’s there to lose?
This is how it works. It is all done on an online platform. There are three bidding rounds. Settlement offers hidden by the software are proposed by each party. If the bids come within a predetermined range, the automated system selects the midpoint and that becomes the settlement amount, subject to the terms of a settlement agreement provided by these platforms. That’s pretty much it.
Some of these platforms even process payment, right there on the spot. You can do it any number of times throughout your dispute. So simple, yet quite effective since it could easily end the dispute that’s been your number one source of stress for years or could be for years to come.
An ADR Agreement Option
AON is one of the optional provisions in our ADR Agreements where in advance of other proceedings the parties agree to proceed to Automated Online Negotiation. This is a sample provision:
Automated Online Negotiation:
As the first process under this agreement, the parties agree to submit their dispute to Automated Online Negotiation. If settlement is not reached, the parties shall proceed to the next step under this agreement.
Providers
AON is relatively new for legal disputes. The traditional ADR providers like AAA or JAMS do not offer AON. A few private and court-sponsored providers do.
We expect new companies to emerge over time.
Private Providers
One private provider is National Arbitration & Mediation. Perform an internet search of automated dispute negotiation or blind bidding dispute negotiation to locate other providers.
Court-Annexed Providers
AON is new to the courts also. They also see its advantage since it is being implemented in some locales to assist primarily self-represented parties in Small Claims cases. It has not reached the Upper Civil Courts yet.
This 4-minute video was prepared by the New York courts to explain the Automated Negotiation process. Remember, this is New York; the laws of your state could be different. This court-linked process also provides the option of moving your dispute directly into Mediation if AON fails. See if this platform is available in the forum where your dispute belongs. This is quite a novel innovation for the very traditional court system, so use is spotty thus far. https://www.courtinnovations.com
These courts that embrace AON make the process readily accessible to you. In some California Small Claims Courts, once the court receives the email address of all parties, an invitation to online Negotiation is sent to each. The parties negotiate themselves via an online chat platform (like texting) and if they feel a mediator is needed, one is invited to the platform. If an agreement is reached before your court date, the case is dismissed. https://my.lacourt. org/odr/small-claims
Online Mediation and Arbitration (ODR)
There are two ways to participate in audio-visual ADR: In-person with the parties present all together in person, and online (referred to as ODR) with the parties present online. There is also a hybrid process where some parties are personally present and some are online, or some of the proceedings are online and others are in-person. The mediator or arbitrator typically chooses hybrid as a workaround.
The Covid-19 pandemic impacted not only the way we live and do business but also how legal disputes are resolved. The need to avoid in-person contact forced disputing parties to seriously embrace new or vastly improved ADR platforms such as online ADR and Document-only Arbitration. It worked big time. Nowadays, our disputes have more modern solutions with impersonal, technology-based platforms, making ADR far more convenient and accessible.
Judicial Arbitration and Mediation (JAMS) provides a 2-minute video https:// www.jamsadr.com/online that describes the characteristics of these new online platforms.
Let’s review some of the advantages and disadvantages of online ADR so you can make the best choice for your proceeding.
ODR’s Advantages
Many advantages to ODR over traditional ADR have become apparent as the ODR system has evolved:
- ODR IS NECESSARY AMIDST THE PANDEMIC. Many dispute resolution providers require only fully vaccinated parties with proof of vaccinations to access in-person ADR. With ODR the entire dispute resolution process can occur online, or a hybrid process can be utilized whereby part of the process is in-person and part is online.
- ODR IS CONVENIENT. People are busy. They don’t have the time to drop the important responsibilities of their daily lives and battle traffic to arrive at a location and devote an entire day or week to resolving their dispute.
- ODR IS LESS ADVERSARIAL. Nobody likes the adversity that comes with meeting in person with an opponent. Emotions and stress take over and the atmosphere naturally becomes combative. The online platform provides the separation necessary to allow parties to operate from a more relaxed, unemotional, less stressful platform.
- ODR IS MORE EQUITABLE. A user’s socio-economic status becomes almost irrelevant with ODR’s equal access. The less advantaged and those unable to take time off work can fully participate.
- ODR IS ACCESSIBLE. ODR allows parties with internet access to file a claim and resolve cases from anywhere and at any time of the day or night. Many disputes that would not otherwise be heard are now being resolved online.
- ODR IS LESS COMPLEX. Disputing parties are no longer interested in adhering to traditional rules that require costly attorney representation to be understood. ODR rules have been siphoned down to make the dispute resolution process streamlined and layperson friendly.
- ODR IS MORE EXPEDITIOUS AND LESS EXPENSIVE. ODR’s information management is aided by computers and software which cause the process to be more direct and platform-regulated. The result is a faster, more efficient, less expensive process.
- BUILDING OF RAPPORT. The online mediator/arbitrator encounters difficulty building rapport with parties, especially in Mediation. Creating an atmosphere in which the parties trust the mediator to help them resolve their dispute is considered vital. Cyber-Mediation loses the dynamics of in-person Mediation because it takes place at a distance and in front of computer screens, rather than face-to-face.
- READING BODY LANGUAGE. In both Mediation and Arbitration, reading body language is important. Online it is quite challenging to do so. Empathy too and human insight, important in both Mediation and Arbitration, is hard to grasp when cyberspace is the platform.
- THOSE WHO ARE NOT TECH-SAVVY. Online access may pose a problem for some individuals. Continuous internet access for the length of time it takes to resolve a dispute (which may be hours, days, and possibly weeks for complex matters) may also pose a problem for those with limited access. It may also disadvantage those who are less familiar with online technology.
- DIFFICULTY TRACKING. It can be difficult to piece it all together when done in cyberspace. The mediator/arbitrator needs to implement appropriate staging, so they and the participants can cohesively understand the whole picture. A complex case that is already convoluted would be more difficult to present online.
- RULE ADHERENCE. Parties and their counsel have a higher tendency to operate outside of the rules when not present under the personal scrutiny of the mediator/arbitrator who must continually monitor and correct
ODR’s Disadvantages
- BUILDING OF RAPPORT. The online mediator/arbitrator encounters difficulty building rapport with parties, especially in Mediation. Creating an atmosphere in which the parties trust the mediator to help them resolve their dispute is considered vital. Cyber-Mediation loses the dynamics of in-person Mediation because it takes place at a distance and in front of computer screens, rather than face-to-face.
- READING BODY LANGUAGE. In both Mediation and Arbitration, reading body language is important. Online it is quite challenging to do so. Empathy too and human insight, important in both Mediation and Arbitration, is hard to grasp when cyberspace is the platform.
- THOSE WHO ARE NOT TECH-SAVVY. Online access may pose a problem for some individuals. Continuous internet access for the length of time it takes to resolve a dispute (which may be hours, days, and possibly weeks for complex matters) may also pose a problem for those with limited access. It may also disadvantage those who are less familiar with online technology.
- DIFFICULTY TRACKING. It can be difficult to piece it all together when done in cyberspace. The mediator/arbitrator needs to implement appropriate staging, so they and the participants can cohesively understand the whole picture. A complex case that is already convoluted would be more difficult to present online.
- RULE ADHERENCE. Parties and their counsel have a higher tendency to operate outside of the rules when not present under the personal scrutiny of the mediator/arbitrator who must continually monitor and correct discrepancies.
Online Mediation and Arbitration are further addressed in the Mediation Coach and Arbitration Coach.
🍪 Smart Cookie Tip: If your ADR agreement includes both Mediation and Arbitration, you can always choose in-person for one and online for the other.
Document-Only Arbitration (DOA)
Document-only Arbitration (DOA) is the same as other Arbitration proceedings, it just excludes oral hearings. Like online proceedings, the document-only process was infrequently used before the Covid-19 pandemic during which we became more technology-based and needing to avoid in-person proceedings. This atmosphere opened a whole new paradigm for Alternative Dispute Resolution, document-only proceedings with it.
These written documents may include contracts between the parties, declarations of parties and witnesses made under penalty of perjury, memoranda of points of law, and other evidentiary submissions. The rules of the Arbitration will provide you with guidelines defining the documents permitted.
These proceedings which exclude the audio-visual element streamline the proceedings considerably and make room for the self-represented party to step up to the bar. Mid-to-low value cases are prime for DOA. Some ADR providers sort their Arbitration cases by value where those valued at $75k or less follow expedited rules, and those valued at $25k or less are routed to a document-only format. See American Arbitration Association rules (p. 10/35).
LawsuitAnalysis.com is your Legal Self Help Resource where you come to analyze your legal dispute with Lawsuit Analyzer© , a legal operating system featured on Good Morning America, CNBC, CBN and recommended by the American Arbitration Association, then are guided to the appropriate forum to resolve your dispute and the steps to take.