Litigation can be enormously expensive and involve a great deal of time and energy. As a result, parties to lawsuits are often interested in seeking quicker, lower-cost alternatives. The most popular choice at this point is alternative dispute resolution, or ADR, which involves using mediation, arbitration, or a combination of the two to resolve a dispute. ADR has proved to able to expedite dispute resolutions, reduce costs, and eliminate litigation risk.
Illinois has a 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. Civil mediation programs have been set up in Illinois (although not yet in every circuit) for civil litigation cases with a value exceeding $30,000. A significant percentage of cases filed in these circuits that use ADR are personal injury cases.
A federal law, the Alternative Dispute Resolution Act of 1998, authorizes each United States district court to require litigants in all civil cases to consider the use of the ADR process. It also orders each federal district to develop its own ADR rules and defines ADR broadly, so that it would include not only mediation and arbitration, but also any other ADR approach that might subsequently find favor.
Mediation. 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. 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, but some are not final. 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.
Choosing ADR. Disputes can be resolved in the personal injury context through ADR in two ways. The most common way to end up in ADR is to have a court order the parties to pursue ADR before going to trial. The other way is to agree mutually to ADR after the dispute arises. This approach is far less common because no party can be forced into ADR by another party.
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.