Alternative dispute resolution, or ADR, involves using mediation, arbitration, or a combination of the two to resolve a dispute rather than going to trial. ADR has proved to able to expedite dispute resolutions and reduce legal costs.
ADR can be an extremely good fit for many family law cases, primarily because they offer a lower-cost alternative to trials. Emotion and bitter feelings often prevent certain types of family law cases from settling amicably. ADR can be a quicker and cheaper way than trials to have a disinterested third-party resolve the dispute.
Not surprisingly, the use of ADR in family law cases has risen dramatically in recent years. In fact, by some accounts, mediation is used more often in domestic relations cases in Illinois than in any other type of case.
Mediation involves a neutral third party (the mediator) who tries to bring opposing sides to a mutually acceptable solution. Unlike a judge, a mediator has no authority to make rulings or render decisions in favor of one or the other party. The mediator listens to both sides and tries to help the parties reach an amicable solution. Mediation differs from other available options because the parties remain in control; they are free to accept or reject solutions offered by the mediator.
Mediation obviously doesn't always work. It is only as effective as the parties involved. In fact, unless all parties are committed to making it work, it generally won't work. But where it does work, it has saved costs and sped up the resolution.
Arbitration, on the other hand, involves a private decision-maker (the arbitrator), who hears evidence informally and makes a decision. Some arbitrator's decisions are final, some are not. It depends upon what the parties have agreed to before-hand. Arbitration, particularly binding arbitration, provides more control than mediation over how disputes are resolved, but it also removes decision-making control from the parties. Arbitration is rarely used in family law cases.
Choosing ADR. Disputes can be resolved through ADR in any of several ways in most cases, but in family law cases, the cases end up in ADR only because the court orders the parties to pursue ADR before going to trial. In the family law context, the Illinois Marriage and Dissolution of Marriage Act gives the courts the authority to order mediation in custody and visitation cases. In Illinois, ADR programs are developed on a circuit-by-circuit basis. Various judicial circuits have developed their own programs to help family law litigants move to ADR, including, for example, Cook County where all divorcing couples work free of charge with full-time mediators to resolve custody and visitation issues.
Rules and regulations. ADR organizations, such as the American Arbitration Association, have established rules to govern ADR processes. The organizations typically provide certification processes for those interested in becoming arbitrators and mediators.
Several states, including Illinois, also have ADR rules. Illinois has the Mandatory Arbitration System, which authorizes the use of arbitration in civil actions; explains the procedures for qualifications, appointments, and compensation of arbitrators; and sets up rules for judgments, expenses, evaluations, and filing fees.
A federal law, the Civil Justice Reform Act of 1990, greatly expanded the use of ADR in federal court cases. When the law expired in 1997, Congress passed the previously mentioned Alternative Dispute Resolution Act of 1998, which encouraged ADR by requiring litigants to consider ADR and ordering each federal district to develop its own ADR rules. The law defined ADR broadly, so that it would include not only mediation and arbitration, but also any other ADR approach that might subsequently find favor.