What is Alternative Dispute Resolution (ADR)?
collaborative approach to divorce aims to remove the win-lose mentality
ADR is a term used to describe several different methods of resolving
legal disputes without going to court. The rising cost of litigation is
making traditional lawsuits impractical for many individuals and
businesses. At the same time, civil courts face backlogged dockets,
resulting in delays of a year or more for private parties to have their cases
heard by a jury. New types of proceedings have been developed in
response, and they are proving beneficial, saving time and money for
everyone involved. These include arbitration, mediation, and additional
kinds of ADR designed for specific cases and subject matters.
Binding and Non-binding Arbitration
Arbitration is much like a trial, in that the parties can call witnesses,
present evidence, and argue the merits of their case to a neutral decision
maker. In many jurisdictions, civil litigants whose claims do not exceed a
certain dollar amount may be ordered to attend arbitration by the court, in
an effort to keep the courts docket clear for more substantial lawsuits.
Local court rules may also allow litigants to elect for their case to be sent
to arbitration regardless of the dollar amount at stake. In doing so, the
parties can agree that the results of the arbitration will be binding or non-
binding. In non-binding arbitration, the loser can afterwards request a new
trial in the civil court.
The court will appoint a well-established attorney in the local area to
perform the duties of arbitrator. This person will act as a judge at the
arbitration hearing, listening to the evidence and rendering a decision.
Parties may be given some amount of say in the arbitrator selection
process. At a minimum, they will be allowed to strike potential arbitrators
with whom they have had prior dealings.
Once a case is sent to arbitration, a conference will be held either by
telephone, or in person at the arbitrators office. Much like a pre-trial
conference in civil court, this is the opportunity for the parties to give the
arbitrator an overview of what the case is about, and to discuss any
evidentiary issues in advance of the arbitration hearing. On the day of the
hearing, the parties will meet in a conference room at the arbitrators
office or in an empty room at the courthouse. Each side will present its
case over the course of several hours. Afterward, the arbitrator can render
a decision immediately, or take the matter under advisement and issue a
written decision in the following weeks.
Using Mediation to Reach a Settlement
Mediation is a much different type of ADR proceeding. Unlike
arbitration, it does not involve an adversarial hearing, and there is no
decision-making official present. Instead, the parties involved in the
dispute are brought together in one location, and a neutral facilitator acts
as a go-between. The job of the mediator is to help the parties reach a
voluntary settlement of the case. For litigants and attorneys who have
become antagonistic toward each other over the course of the litigation, or
who have unrealistic expectations concerning the outcome of the case,
mediation may be their only chance to avoid having to go to trial.
A typical mediation begins with everyone meeting in the same room, and
each party giving a short presentation to the mediator. The purpose of the
presentation is to give an overview of the facts and impress upon the
mediator the relative strength of that partys case. The parties then split up
into two rooms. The mediator goes back and forth between the rooms,
personally relaying the parties settlement offers and responses. Parties
can share information with the mediator in confidence, and the mediator
will give the parties his or her own thoughts about the case. In the end, the
goal is for the parties to agree on how the case should be resolved.
Collaborative Divorce and Specialist Evaluations
Divorce cases have the potential to turn into bitterly contested ordeals. A
so common in these cases. Both spouses are still represented by their own
attorneys, but family counselors, financial professionals, and others are
brought into the negotiations as well. In a series of group sessions, the
parties discuss and reach agreement on issues such as property division,
alimony, and child custody and visitation.
ADR can also take the form of an evaluation and mediation-type
proceeding overseen by a legal professional with specialized training in
the subject of the dispute. For example, parties in a construction defect
lawsuit may agree to present their evidence to a neutral individual who is
both an attorney and an architect. This person will know more about
proper construction techniques than a judge or jury, and may be able to
help the parties resolve their differences at a far lower cost than traditional
litigation.
Attorney Representation in ADR Cases
If you are looking to cut short the litigation process, ADR may be the
answer. But regardless of the type of ADR proceeding you are
contemplating, you need independent legal advice to protect your
interests. Contact an attorney to learn more about the benefits of resolving
your case out of the courtroom.
What is ADR?
Alternative Dispute Resolution (ADR) is a general term encompassing
various techniques for resolving conflict outside of court using a neutral
third party. When strategically applied in the context of enforcement
negotiations, ADR has proven to be a useful tool in overcoming impasse,
improving the efficiency of difficult negotiations, and achieving durable
settlements. Outside of the enforcement context, ADR has been
effectively used to enhance public involvement in environmental
decisions, to facilitate technical inquiries and information exchanges, and
to identify creative solutions to daunting problems
What types of ADR might be used in environmental matters?
Mediation
In mediation, a neutral mediator with no decision-making
authority helps parties clarify issues, explore settlement options, and
evaluate how best to advance their respective interests. Mediation is the
ADR technique most commonly used in regulatory and Superfund
enforcement cases and, in this context, is generally a confidential process.
Facilitation
Facilitation involves the use of a neutral to help a group of
people conduct productive discussions about complex, sensitive, or
potentially controversial issues. The focus of the facilitators role is to
help people communicate effectively with each other. Facilitation may be
a significant component of a mediation process, especially where a large
number of parties are involved. Facilitation is also often used, in the
absence of an active dispute, when people come together for some type of
exchange, such as to share information, to air divergent views, to generate
options, to establish priorities, or to offer input into a decision. Facilitation
can be useful in otherwise unassisted enforcement negotiations to help
reduce confusion and conduct productive and clarifying discussions.
Depending upon the context, facilitative processes may or may not be
confidential.
Convening
Convening is the use of a neutral to help parties determine
whether and how to pursue negotiation; the convener may help the parties
identify issues, identify necessary participants, determine whether some
type of neutral assistance would be useful, and if so, select a mutually
acceptable neutral or team of neutrals. Individual conversations with a profession in recent years. In fact, some courts now require some parties
neutral convener are generally confidential. to resort to ADR of some type, usually mediation, before permitting the
parties' cases to be tried (indeed the European Mediation Directive
Arbitration (2008) expressly contemplates so-called "compulsory" mediation; this
At the other end of the spectrum from mediation is arbitration, means that attendance is compulsory, not that settlement must be reached
in which the neutral evaluates the merits of the case and issues a decision through mediation). The rising popularity of ADR can be explained by the
which may be either binding or non-binding (advisory). The arbitrator increasing caseload of traditional courts, the perception that ADR imposes
functions essentially as a judge. fewer costs than litigation, a preference for confidentiality, and the desire
of some parties to have greater control over the selection of the individual
Spectrum of Dispute Resolution Methods or individuals who will decide their dispute. Some of the senior judiciary
in certain jurisdictions (of which England and Wales is one) are strongly
Unassisted Assisted Negotiation Adjudication in favour of this (ADR) use of mediation to settle disputes.
Negotiation
Process Outcome ADR is generally classified into at least four
Assistance Prediction types: negotiation, mediation, collaborative law, and arbitration.
(Sometimes a fifth type, conciliation, is included as well, but for present
Negotiation: Parti Convening: Th Early Neutral Court: Parties
purposes it can be regarded as a form of mediation. See conciliation for
es and their e use of a Evaluation: Th litigate their
further details.) ADR can be used alongside existing legal systems such as
attorneys attempt neutral to help e use of a case in court,
sharia courts within common law jurisdictions such as the UK. ADR
to resolve a parties neutral presenting
traditions vary somewhat by country and culture. There are significant
dispute through determine evaluator to evidence and
common elements which justify a main topic, and each country or region's
direct discussions whether and give opinions arguments to a
difference should be delegated to sub-pages.
with one another. how to pursue on each partys judge and, as
negotiations. case and the appropriate, a
Alternative Dispute Resolution is of two historic types. First,
likely court jury. The court
methods for resolving disputes outside of the official judicial mechanisms.
Facilitation: T outcome. issues a binding
Second, informal methods attached to or pendant to official judicial
he uses of a decision subject
mechanisms. There are in addition free-standing and or independent
neutral to help a Fact to any rights of
methods, such as mediation programs and ombuds offices within
group of people Finding: The appeal.
organizations. The methods are similar, whether or not they are pendant,
conduct use of a neutral
and generally use similar tool or skill sets, which are basically sub-sets of
productive to investigate, Administrative
the skills of negotiation.
discussions analyze, and Court: Parties
about complex report to parties try their case
ADR includes informal tribunals, informal mediative processes,
or potentially regarding before an
formal tribunals and formal mediative processes. The classic formal
controversial factual agency
tribunal forms of ADR are arbitration (both binding and advisory or non-
issues. questions. administrative
binding) and private judges (either sitting alone, on panels or over
law judge for a
summary jury trials). The classic formal mediative process is referral for
Mediation: A Non-binding binding
mediation before a court appointed mediator or mediation panel.
voluntary Arbitration: T decision subject
Structured transformative mediation as used by the U.S. Postal Service is
process he use of a to any rights of
a formal process. Classic informal methods include social processes,
involving the neutral to appeal.
referrals to non-formal authorities (such as a respected member of a trade
use of a neutral review
or social group) and intercession. The major differences between formal
to help parties evidence, hear Binding
and informal processes are (a) pendency to a court procedure and (b) the
reach arguments, and Arbitration: T
possession or lack of a formal structure for the application of the
agreement by issue a non- he use of a
procedure.
clarifying binding neutral to
issues, decision. review
For example, freeform negotiation is merely the use of the tools
exploring evidence, hear
without any process. Negotiation within a labor arbitration setting is the
settlement Summary Jury arguments, and
use of the tools within a highly formalized and controlled setting. Calling
options, and Trial: Parties issue a binding
upon an organizational ombudsman's office is never, by itself, a formal
evaluating how present their decision.
procedure. (Calling upon an organizational ombudsman is always
best to advance case to a jury
voluntary; by the International Ombudsman Association Standards of
their respective for a non-
Practice, no one can be compelled to use an ombuds office.)
interests. binding
Organizational ombuds offices refer people to all conflict management
decision.
options in the organization: formal and informal, rights-based and interest-
Non-Binding Outcome Binding based. But, in addition, in part because they have no decision-making
Outcome authority, ombuds offices can, themselves, offer a wide spectrum of
informal options.
ALTERNATIVE DISPUTE RESOLUTION (ADR)
This spectrum is often overlooked in contemporary discussions of
(also known as external dispute resolution in some countries, ADR. ADR often refers to external conflict management options that
such as Australia) includes dispute resolution processes and techniques are important, but used only occasionally. An organizational ombuds
that act as a means for disagreeing parties to come to an agreement short office typically offers many internal options that are used in hundreds of
of litigation. It is a collective term for the ways that parties can settle cases a year. These options include:
disputes, with (or without) the help of a third party. Despite historic delivering respect, for example, affirming the feelings of a visitor,
resistance to ADR by many popular parties and their advocates, ADR has while staying explicitly neutral on the facts of a case,
gained widespread acceptance among both the general public and the legal active listening, serving as a sounding board,
 providing and explaining information, one-on-one, for example,
about policies and rules, and about the context of a concern,
receiving vital information, one-on-one, for example, from those
reporting unacceptable or illegal behavior,
reframing issues,
helping to develop and evaluate new options for the issues at hand,
offering the option of referrals to other resources, to key people in
the relevant department, and to managers and compliance offices,
helping people help themselves to use a direct approach, for
example, helping people collect and analyze their own information,
helping people to draft a letter about their issues, coaching and role-
playing,
offering shuttle diplomacy, for example, helping employees and
managers to think through proposals that may resolve a dispute,
facilitating discussions,
offering mediation inside the organization,
looking into a problem informally,
facilitating a generic approach to an individual problem, for example
instigating or offering training on a given issue, finding ways to
promulgate an existing policy,
identifying and communicating throughout the organization about
new issues,
identifying and communicating about patterns of issues,
working for systems change, for example, suggesting new policies,
or procedures,
Following up with a visitor, following up on a system change
recommendation. (See Rowe, Mary, Informality The Fourth
Standard of Practice, in JIOA, vol 5, no 1, (2012) pp 817.)
Informal referral to a co-worker known to help people work out
issues is an informal procedure. Co-worker interventions are usually
informal. Conceptualizing ADR in this way makes it easy to avoid
confusing tools and methods (does negotiation once a lawsuit is filed
cease to be ADR? If it is a tool, then the question is the wrong question)
(is mediation ADR unless a court orders it? If you look at court orders and
similar things as formalism, then the answer is clear: court annexed
mediation is merely a formal ADR process).
Dividing lines in ADR processes are often provider driven rather
than consumer driven. Educated consumers will often choose to use many
different options depending on the needs and circumstances that they face.
Finally, it is important to realize that conflict resolution is one major goal
of all the ADR processes. If a process leads to resolution, it is a dispute
resolution process.[4]
The salient features of each type are as follows:
1. In negotiation, participation is voluntary and there is no third party
who facilitates the resolution process or imposes a resolution. (NB
a third party like a chaplain or organizational ombudsperson or social
worker or a skilled friend may be coaching one or both of the parties
behind the scene, a process called "Helping People Help
Themselves" see Helping People Help Themselves, in Negotiation
Journal July 1990, pp. 239248, which includes a section on helping
someone draft a letter to someone who is perceived to have wronged
them.)
2. In mediation, there is a third party, a mediator, who facilitates the
resolution process (and may even suggest a resolution, typically
known as a "mediator's proposal"), but does not impose a resolution
on the parties. In some countries (for example, the United Kingdom),
ADR is synonymous with what is generally referred to
as mediation in other countries.
3. In collaborative law or collaborative divorce, each party has an
attorney who facilitates the resolution process within specifically
contracted terms. The parties reach agreement with support of the
attorneys (who are trained in the process) and mutually-agreed
experts. No one imposes a resolution on the parties. However, the
process is a formalized process that is part of the litigation and court
system. Rather than being an Alternative Resolution methodology it
is a litigation variant that happens to rely on ADR like attitudes and
processes.
4. In arbitration, participation is typically voluntary, and there is a third
party who, as a private judge, imposes a resolution. Arbitrations often
occur because parties to contracts agree that any future dispute
concerning the agreement will be resolved by arbitration. This is
known as a 'Scott Avery Clause'. In recent years, the enforceability of
arbitration clauses, particularly in the context of consumer
agreements (e.g., credit card agreements), has drawn scrutiny from
courts. Although parties may appeal arbitration outcomes to courts,
such appeals face an exacting standard of review.
Beyond the basic types of alternative dispute resolutions there are other
different forms of ADR:
Case evaluation: a non-binding process in which parties present the
facts and the issues to a neutral case evaluator who advises the
parties on the strengths and weaknesses of their respective positions,
and assesses how the dispute is likely to be decided by a jury or other
adjudicator.
Early neutral evaluation: a process that takes place soon after a case
has been filed in court. The case is referred to an expert who is asked
to provide a balanced and neutral evaluation of the dispute. The
evaluation of the expert can assist the parties in assessing their case
and may influence them towards a settlement.
Family group conference: a meeting between members of a family
and members of their extended related group. At this meeting (or
often a series of meetings) the family becomes involved in learning
skills for interaction and in making a plan to stop the abuse or other
ill-treatment between its members.
Neutral fact-finding: a process where a neutral third party, selected
either by the disputing parties or by the court, investigates an issue
and reports or testifies in court. The neutral fact-finding process is
particularly useful for resolving complex scientific and factual
disputes.
Ombuds: third party selected by an institution for example a
university, hospital, corporation or government agency to deal with
complaints by employees, clients or constituents. An organizational
ombudsman works within the institution to look into complaints
independently and impartially.
"Alternative" dispute resolution is usually considered to be alternative
to litigation. It also can be used as a colloquialism for allowing a dispute
to drop or as an alternative to violence. In recent years there has been
more discussion about taking a systems approach in order to offer
different kinds of options to people who are in conflict, and to foster
"appropriate" dispute resolution. That is, some cases and some
complaints in fact ought to go to formal grievance or to court or to the
police or to a compliance officer or to a government IG. Other conflicts
could be settled by the parties if they had enough support and coaching,
and yet other cases need mediation or arbitration. Thus "alternative"
dispute resolution usually means a method that is not the courts.
"Appropriate" dispute resolution considers all the possible responsible
options for conflict resolution that are relevant for a given issue.
ADR can increasingly be conducted online, which is known
as online dispute resolution (ODR, which is mostly a buzzword and an
attempt to create a distinctive product). It should be noted, however, that
ODR services can be provided by government entities, and as such may
form part of the litigation process. Moreover, they can be provided on a
global scale, where no effective domestic remedies are available to
disputing parties, as in the case of the UDRP and domain name disputes.
In this respect, ODR might not satisfy the "alternative" element of ADR.
BENEFITS
ADR has been increasingly used internationally, both alongside and
integrated formally into legal systems, in order to capitalize on the typical
advantages of ADR over litigation:
Suitability for multi-party disputes
Flexibility of procedure - the process is determined and controlled by
the parties to the dispute
Lower costs
Less complexity ("less is more")
Parties choice of neutral third party (and therefore expertise in area
of dispute) to direct negotiations/adjudicate
Likelihood and speed of settlements
Practical solutions tailored to parties interests and needs (not rights
and wants, as they may perceive them)
Durability of agreements
Confidentiality
The preservation of relationships and the preservation of reputations
Arbitration
The process of arbitration can start only if there exists a valid Arbitration
Agreement between the parties prior to the emergence of the dispute. As
per Section 7, such an agreement must be in writing. The contract,
regarding which the dispute exists, must either contain an arbitration
clause or must refer to a separate document signed by the parties
containing the arbitration agreement. The existence of an arbitration
agreement can also be inferred by written correspondence such as letters,
telex, or telegrams which provide a record of the agreement. An exchange
of statement of claim and defense in which existence of an arbitration
agreement is alleged by one party and not denied by other is also
considered as valid written arbitration agreement.
Any party to the dispute can start the process of appointing arbitrator and
if the other party does not cooperate, the party can approach the office of
Chief Justice for appointment of an arbitrator. There are only two grounds
upon which a party can challenge the appointment of an arbitrator
reasonable doubt in the impartiality of the arbitrator and the lack of proper
qualification of the arbitrator as required by the arbitration agreement. A
sole arbitrator or a panel of arbitrators so appointed constitutes the
Arbitration Tribunal. Except for some interim measures, there is very little
scope for judicial intervention in the arbitration process. The arbitration
tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to
challenge the jurisdiction of the arbitration tribunal, it can do so only
before the tribunal itself. If the tribunal rejects the request, there is little
the party can do except to approach a court after the tribunal makes an
award. Section 34 provides certain grounds upon which a party can appeal
to the principal civil court of original jurisdiction for setting aside the
award. The period for filing an appeal for setting aside an award is over,
or if such an appeal is rejected, the award is binding on the parties and is
considered as a decree of the court.
Conciliation
Conciliation is a less formal form of arbitration. This process does not
require an existence of any prior agreement. Any party can request the
other party to appoint a conciliator. One conciliator is preferred but two or
three are also allowed. In case of multiple conciliators, all must act jointly.
If a party rejects an offer to conciliate, there can be no conciliation. Parties
may submit statements to the conciliator describing the general nature of
the dispute and the points at issue. Each party sends a copy of the
statement to the other. The conciliator may request further details, may
ask to meet the parties, or communicate with the parties orally or in
writing. Parties may even submit suggestions for the settlement of the
dispute to the conciliator. When it appears to the conciliator that elements
of settlement exist, he may draw up the terms of settlement and send it to
the parties for their acceptance. If both the parties sign the settlement
document, it shall be final and binding on both. Note that in USA, this
process is similar to Mediation. However, in India, Mediation is different
from Conciliation and is a completely informal type of ADR mechanism.
ALTERNATIVE DISPUTE RESOLUTION
In the late 1980s and early 1990s, many people became increasingly conce
rned that the traditional method of resolving legaldisputes in the United St
ates, through conventional litigation, had become too expensive, too slow,
and too cumbersome formany civil lawsuits (cases between private parties
). This concern led to the growing use of ways other than litigation toresol
ve disputes. These other methods arecommonly known collectively as alte
rnative dispute resolution.
As of the early 2000s, ADR techniques were being used more a
nd more, as parties and lawyers and courts realized thatthese techniques co
uld often help them resolve legal disputes quickly and cheaply and more p
rivately than could conventionallitigation. Moreover, many people preferr
ed ADR approaches because they saw these methods as being more creati
ve andmore focused on problem solving than litigation, which has always
been based on an adversarial model.The term alternativedispute resolution
is to some degree a misnomer. In reality, fewer than 5 percent of all lawsu
its filed go to trial; the other 95percent are settled or otherwise concluded
before trial. Thus, it is more accurate to think of litigation as the alternativ
e andADR as the norm. Despite this fact, the term alternative dispute resol
ution has become such a wellaccepted shorthand forthe vast array of nonlit
igation processes that its continued use seems assured.
Although certain ADR techniques are well established and frequ
ently used-
for example, mediation and arbitrationalternative dispute resolution has no
fixed definition. The term alternative dispute resolution includes a wide ra
nge ofprocesses, many with little in common except that each is an alterna
tive to fullblown litigation. Litigants, lawyers, and judgesare constantly ad
apting existing ADR processes or devising new ones to meet the unique ne
eds of their legal disputes. Thedefinition of alternative dispute resolution i
s constantly expanding to include new techniques.ADR techniques have n
ot been created to undercut the traditional U.S. court system. Certainly, A
DR options can be used incases where litigation is not the most appropriat
e route. However, they can also be used in conjunction with litigation whe
nthe parties want to explore other options but also want to remain free to r
eturn to the traditional court process at any point.Of the many ways to reso
lve a legaldispute other than formal litigation, mediation, arbitration, medi
ationarbitration, Minitrial,early neutral evaluation, and summary jury trial
are the most common.
Mediationalso known as conciliation
Is the fastest growing ADR method. Unlike litigation, mediation
provides a forum inwhich parties can resolve their own disputes, with the
help of a neutral third party.
Mediation depends upon the commitment of the disputants to solve their o
wn problems. The mediator, also known as afacilitator, never imposes a de
cision upon the parties. Rather, the mediator's job is to keep the parties tal
king and to helpmove them through the more difficult points of contention
. To do this, the mediator typically takes the parties through fivestages.
First, the mediator gets the parties to agree on procedural matters, such as
by stating that they are participating in themediation voluntarily, setting th
e time and place for future sessions, and executing a formal confidentiality
agreement. Onevaluable aspect of this stage is that the parties, who often
have been unable to agree on anything, begin a pattern of sayingyes.
Second, the parties exchange initial positions, not by way of lect
uring the mediator but in a face-to
face exchange with eachother. Often, this is the first time each party hears
the other's complete and uninterrupted version. The parties may begin tose
e that the story has two sides and that it may not be so unreasonable to co
mpromise their initial positions.
Third, if the parties have agreed to what is called a caucusing pr
ocedure, the mediator meets with each side separately in aseries of confide
ntial, private meetings and begins exploring settlement alternatives, perha
ps by engaging the parties in some"reality testing" of their initial proposals
. This process, sometimes called shuttle diplomacy, often uncovers areas o
f flexibilitythat the parties could not see or would have been uncomfortabl
e putting forward officially.
Fourth, when the gap between the parties begins to close, the me
diator may carry offers and counteroffers back and forthbetween them, or t
he parties may elect to return to a joint session to exchange their offers.
Finally, when the parties agree upon the broad terms of a settle
ment, they formally reaffirm their understanding of thatsettlement, comple
te the final details, and sign a settlement agreement.
Mediation permits the parties to design and retain control of the
process at all times and, ideally, eventually strike their ownbargain. Evide
nce suggests that parties are more willing to comply with their own agree
ments, achieved through mediation,than with adjudicated decisions, impos
ed upon them by an outside party such as a judge.An additional advantage
is that when the parties reach agreement in mediation, the dispute is over,t
hey face no appeals,delays, continuing expenses, or unknown risks. The p
arties can begin to move forward again. Unlike litigation, which focuseson
the past, mediation looks to the future. Thus, a mediated agreement is part
icularly valuable to parties who have anongoing relationship, such as a co
mmercial or employment relationship.
Arbitration more closely resembles traditional litigation in that
a neutral third party hears the disputants' arguments andimposes a final an
d binding decision that is enforceable by the courts. The difference is that i
n arbitration, the disputantsgenerally agreed to the procedure before the di
spute arose; the disputants mutually decide who will hear their case; and t
heproceedings are typically less formal than in a court of law. One extrem
ely important difference is that, unlike courtdecisions, arbitration offers al
most no effective appeal process. Thus, when an arbitration decision is iss
ued, the case is ended.
Final and binding arbitration has long been used in labor
management disputes. For decades, unions and employers havefound it m
utually advantageous to have a knowledgeable arbitrator
whom they have chosen
resolve their disputes in thischeaper and faster fashion. One primary advan
tage for both sides has been that taking disputes to arbitration has keptever
yone working by providing an alternative to strikes and lockouts and has k
ept everyone out of the courts. Given this verysuccessful track record, the
commercial world has become enthusiastic about arbitration for other type
s of disputes as well.
Now a new form of arbitration, known as court-
annexed arbitration, has emerged. Many variations of court-
annexed arbitration
have developed throughout the United States. One can be found in Minn
esota, where, in the mid1990s, the Hennepin CountyDistrict Court adopted
a program making civil cases involving less than $50,000 subject to mand
atory nonbinding arbitration.The results of that experimental program wer
e so encouraging that legislation was later enacted expanding the arbitratio
nprogram statewide. As of 2003, most cases were channeled through an A
DR process before they could be heard in thecourts. A growing number of
other federal and state courts were adopting this or similar approaches.
MEDIATION-ARBITRATION
As its name suggests, mediation-arbitration, or med
arb, combines mediation and arbitration. First, a mediator tries to bring
the partiescloser together and helps them reach their own agreement. If the
parties cannot compromise, they precede to arbitration
before that same third party or before a different arbitrator
for a final and binding decision.
MINI-TRIAL
The minitrial, a development in ADR, is finding its greatest use in resolvin
g largescale disputes involving complex questionsof mixed law and fact, s
uch as Product
Liability, massive construction, and antitrust cases. In a mini-
trial, each partypresents its case as in a regular trial, but with the notable di
fference that the case is "tried" by the parties themselves, andthe presentati
ons are dramatically abbreviated.
In a minitrial, lawyers and experts present a condensed version of the case
to top management of both parties. Often, aneutral adviser
sometimes an expert in the subject area
sits with management and conducts the hearing. After thesepresentations, t
op management representatives
by now more aware of the strengths and weaknesses of each side
try tonegotiate a resolution of the problem. If they are unable to do so, the
y often ask for the neutral adviser's best guess as to theprobable outcome o
f the case. They then resume negotiations.
The key to the success of this approach is the presence of both sides' top o
fficials and the exchange of information thattakes place during the minitria
l. Too often, prelitigation work has insulated top management from the tru
e strengths andweaknesses of their cases. Mini-
trial presentations allow them to see the dispute as it would appear to an o
utsider and setthe stage for a cooperative settlement.
EARLY-NEUTRAL EVALUATION
An early neutral evaluation (ENE) is used when one or both part
ies to a dispute seek the advice of an experienced individual,usually an att
orney, concerning the strength of their cases. An objective evaluation by a
knowledgeable outsider cansometimes move parties away from unrealistic
positions, or at least provide them with more insight into their cases' stren
gthsand weaknesses. Of course, the success of this technique depends upo
n the parties' faith in the fairness and objectivity ofthe neutral third-
party, and their willingness to compromise.
SUMMARY JURY TRIAL
Summary jury trials have been used prima-
rily in the federal courts, where they provide parties with the opportunity t
o "try"their cases in an abbreviated fashion before a group of jurors, who t
hen deliberate and render an Advisory Opinion.
Like an early neutral evaluation, an advisory opinion from a su
mmary jury trial can help the parties assess the strengths andweaknesses o
f their cases and sometimes can facilitate the settlement of the dispute. An
other advantage of the summaryjury trial, which it has in common with th
e minitrial, is that it can be scheduled much sooner than a trial. When earl
yevaluations help the parties settle their cases, the parties typically avoid
much of the delay, expense, and anxiety thatoccurs in litigation.
The Law on Alternative Dispute Resolution: Private Justice in the
Philippines
Caveat: This is merely a summary of the book. You should read the book
at least once. This reviewer does not contain some essential definitions
because such are already defined in the law, RA 9285. No copyright
infringement is intended.
CHAPTER 1
The Laws delay: An introduction
History of ADR
Pre-Hispanic era-Jose Rizal noted the custom of the inhabitants
of the Philippines before the Spaniards reached its shores. They submitted
the decision of their elders, which they respected and carried out.
According to Jose Rizal, it was better that the ..Judges were persons of
the locality, forming a jury, elected by both parties who knew the case, the
customs and usages better than the gowned judge from the outside to
make his fortune, to judge the case he does not know and who does not
know the usage customs and language of the locality. It is easy to
surmise that our ancestors practiced ADR.
 Hispanic Era-Discontented parties had to resort to going to the
SC of Spain which was a 36-day trip. Procedure for civil action, although
similar to the criminal cases, was definitely more costly and drawn-out.
The high cost and unwarranted delays ensured that only the Europeans
and the rich merchants in the city and the wealthy landowners in the rural
areas could afford the prosecution of the civil suit.
Our primitive ancestors were ahead of their times!
Problems of judicial delay according to Marcos (1967):
1) The misuse of the due process and the abuse of legal
technicalities;
2) The intervention of the political pressure in the court cases;
3) Sheer weight of the court litigations arising from development
and growth;
4) Dilatory tactics of lawyers;
5) Neglect and laxity on the part of the judges.
The Laws delay according to Florentino P. Feliciano:
1) An efficient and mismanaged court system that fails to act
promptly on legal issues ;
2) The disorganized state of the court-connected agencies;
3) The lack of preparation on the part of the litigants and lawyers;
4) The trigger-happy mind frame of lawyers to engage in long-
winded examinations of witnesses; and
5) The lawyers propensity to elevate their cases to the appellate
courts and needlessly filing petitions for mandamus, prohibition
and certiorari for the purpose of reviewing the interlocutory
orders of the lower courts.
But a more serious factor behind the laws delay in the Philippines
involves the billing practice of lawyers. (Billable hours, number of court
appearances) Delaying tactics to consume time.
The choice between a litigation and settlement is clear. He would
rather cut through the chase and solve his disputes swiftly and move on
with his life.
AGAN v. PIATCO (GR> NO. 15501)-SC ordered all affected parties to
comment made by one of the parties that PIATCO commences arbitration
proceedings by filing a request for arbitration with the secretariat of the
International chamber of commerce, International Court of arbitration.
Private Justice-the concept is fairly recent development in the
administration of justice.
-Private Courts are managed by private organizations, called
ADR providers to serve those who need to resolve most types of
consumer, civil, corporate and commercial disputes.
-Parties generally agree to enter the private court system for one
main reason: the public court system is too chaotic and unwieldy.
-vigilante justice
-Judges, selected by the parties and are paid on an hourly or a
per session basis, are for rent not for sale. They are paid for their time and
their expertise, not their expected favors.
CON: Creates a dual court system-one rich and one poor. No
means a perfect system, it offers enormous savings in time, effort, anxiety,
money in the long haul.
CHAPTER 2
The litigation of conflict: A Confucian Confusion
Two fundamental reasons for failure of trial courts according to Ralph
Warner and Stephen Elias:
1) Court Rules and Procedures are so complicated and inefficient
that lawyer fees and other costs end up being a bigger problem
than the dispute itself.
2) Winner take-all system defies logic, encourages lying and
generally brings out the worst in all participants.
The Nature of Conflict
Conflict- clash of divergence of opinions, values and interests and
emotions.
Several phases of the conflict process by Peter Condiffe (1995)
1) Conflict starts when parties perceive their differences-they go
though feelings of anxiety and frustration.
2) Realization or expression of grievances and the assessment of
all angles in the conflict.
-some parties get afflicted with AVOIDANCE SYNDROME
(disregarding the existence of the problem because of relative
powerlessness high risks and costs involved)
3) Parties choose their conflict resolution methods and select their
strategies to settle their disagreements.
4) Evaluation of outcomes and the analysis of all ramifications of
full implementation of the chosen methods of conflict management.
ADR aims to solve the conflict not win the lawsuit which is the
aim of litigation. Conflict is a contest and a problem to solve (Bill
Withers)
Modes of Resolving Conflict (Blake and Moulton)
1) Withdrawal-Avoidance behavior on one or both parties
2) Smoothing-emphasis of common interest and yielding by one or
both parties.
3) Compromising-each side obtains a part of what it wants.
4) Forcing-forcing the other to acquiesce.
5) Problem solving-involves an agreement in which both sides
meet their objective and affective needs.
When a person wins through a lawsuit can compare it as a Pyrrhic
victory (pronounced /prk/) which is a victory with devastating cost to
the victor; it carries the implication that another such will ultimately cause
defeat.
Importance of Litigation (Peter Lovenheim)
1) When you need to establish a legal precedent, such as the
validity of the patent which your company holds;
2) When you need to publicly prove the truth, such as when a
customers complaint about the product quality or safety has
received wide attention in the media products good name;
3) When your companys legal rights have been infringed and you
stand a good chance of collecting substantial damages in court;
4) When your opponent is unable and unwilling to participate in
ADR; and
5) When serious crimes are involved in the dispute.
CHAPTER 3
The Grand Misnomer: Alternative Dispute Resolution
Legal Basis of ADR:
ART. VIII, Sec. 5 (5) 1987 Constitution
-Mandating the SC to promulgate rules that shall provide a simplified
and inexpensive procedure for the speedy disposition of cases.
Rule 18, Sec 2(a) 1997 Rules of Civil Procedure
-Requiring the courts to consider the possibility of an amicable settle or
of a submission to alternative modes of resolution.
Alternative comes from the word alternate which means substitute,
spare tire, a second stringer, a fallback position.
Which is wrong because litigation should be the LAST option not
ADR.
Limitations of ADR Cases that involve:
1) Constitutional law issues
2) Anti-trust suits
3) Probate
4) Adoption
5) Precedent-setting cases that involve punitive damages
6) Actions of equitable relief, and
7) Nuisance are beyond the scope of arbitration.
ART. 2035 of the Civil Code
If related issues of the following are matters in controversy may not be
capable of being referred to arbitration:
1) Civil Status of persons;
2) Validity of Marriage;
3) And legal separation;
4) Futures support;
5) Future legitime;
6) Jurisdiction of the courts;
7) Future jurisdiction of the courts.
CHAPTER IV
 The Settlement of dispute in the Philippines:
A culture of PAKIKISAMA
Many Filipinos readily overcome conflict through pragmatic means. Gini
Grahams techniques in Resolving Conflict:
1) Identify the source of the problem
2) Applying the appropriate problem solving techniques:
a. Creative visualization-examine the reasons for the problem
b. Brain-storming-come up with alternatives
c. Automatic writing-ask inner self for reactions of those possibilities
d. Mental Imaging-ask inner expert for advice in making choices.
Litigation is what many Filipino Lawyers do best. Students of law
are trained to think like lawyers, but they are not prepared to deal with
they should do best: solve their client problems and resolve their disputes
with the least amount of time and expense. The key to decongest the
courts is that students should be trained to be sensitive to their clients
wishes to settle their conflict or dispute swiftly and without expense to
court trials.
Filipino Conflict Management System
Filipino Values
1) Pakikiusap-request and
2) Pakikisama-Companionship
Keep communication lines open.
1) Amor Proprio (self-respect)
2) Pasikaban (one-upmanship)
3) Bahala na (fatalism)
4) Gantihan (retaliation)
Impede settlement and plays key roles in clogging the courts with
frivolous suits that are brought just to Save face or to give a lesson to
the opposing party.
But, positive aspects of Filipino culture that may tend to mitigate the
Filipino propensity to litigate disputes:
1) Kamag-anak network (close family ties)
2) Tulungan (mutual aid)
3) Bigayan (give and take)
4) Palabra de Honor (Word of Honor)
5) Bayanihan (cooperative endeavor)
6) Hiya (shame of doing something wrong)
7) Utang na loob (recognition of a debt or obligation)
8) Paggalang (respect or honor)
9) Kompadre (godfather system)
10) Delikadesa (Being proper)
The Katarungan Pambarangay was seen by legislators as a means to
decongest the courts dockets, by encouraging the settlement of minor
cases at the barangay level, which will in turn allow the courts to speed up
the adjudication of already pending cases. This again relates to the access-
to-justice problem in the country.
To ensure that the goal is met, the Local Government Code makes
KP mediation and conciliation a condition precedent to the filing of cases
in court. 7 Though non-compliance does not result in jurisdictional defect
thereby rendering the court proceedings void ab initio, such failure, if
seasonably raised, makes the case vulnerable to a motion to dismiss on the
ground of prematurity (Garces v. CA, 162 SCRA 504). (TAKEN FROM
AN ONLINE PRIMER OF THE KATARUNGAN PAMBARANGAY
Published by the UP-College of Law)
Types of Arbitration in the Philippines:
1) Labor Arbitration
The Labor Code of the Philippines makes arbitration mandatory in
cases involving the interpretation and implementation of collective
bargaining agreements (CBA) and the interpretation or enforcement of
company personnel policies. The original and exclusive jurisdiction of
which falls with the Voluntary Arbitrators. (Sanyo v. Canizares)
2) Construction Arbitration
The creation of the Construction Industry Arbitration Commission
(CIAC) ushered the birth of arbitration in the construction industry.(EO.
1008)
Private or Government-entered construction contracts can be submitted.
Tesco v. Vera-While it is true that the CIAC shall have original and
exclusive jurisdiction over disputes connected with contracts entered
into by parties involved in the construction industry in the Philippines,
the parties must first agree to do so before the CIAC can acquire
jurisdiction to arbitrate the matter.
3) Consumer Arbitration
Consumer Act of the Philippines (RA no. 7394) provides for the
creation of a consumer arbitration program to handle consumer
complaints. They have original and exclusive jurisdiction to mediate,
conciliate hear and adjudicate all consumer complaints xxx.
4) Matrimonial Mediation
Disputes between couples that are civil in nature may be the subject of
court-referred mediation, subject to the limitations of Art. 2035 of the
Civil Code.
The ff. disputes may not be compromised:
a) civil status of persons
b) validity of marriage or legal separation
c) any ground for legal separation
d) future support
e) future legitime
f) jurisdiction of the courts.
5) Corporate Arbitration
Corporation Code provides for the mechanism to resolve
corporate disputes. The SEC can exercise its power to arbitrate the
dispute upon written petition by any stockholder. (read more about
powers of the SEC)
6) Partnership Arbitration
The CC states that is beyond the authority of one or more but less than
all the partners to enter into a compromise or submit to arbitration a
partnership claim or liability. When it comes to ADR, unanimous
consent of partners is needed to carry out the plant to resolve
partnership disputes without a court trial.
7) Administrative Arbitration
Doctrine of Non-exhaustion of administrative remedies
8) Environmental Mediation
9) Executive Arbitration
10) Foreign Arbitration
11) Banking Arbitration
12) Mining Arbitration
13) Maritime Arbitration
14) Insurance Arbitration
15) IP Arbitration
16) Securities Arbitration
Six-Step Structure of a face-to-face mediation meeting
(I-H-I-M-I-S)
1) Introduction and agreeing of ground rules
2) Hearing what has happened or summarizing the facts
3) Identifying the issues
4) Mutual understanding and communicating feelings
5) Ideal storming of a win/win solution
6) Signing of voluntary agreement.
Causes of Court Delays (Justice Myrna Dimaranan Vidal)
1) the misuse of the due process and the abuse of legal
technicalities;
2) the intervention of political pressure in court cases;
3) the sheer weight of court litigations arising from development
and growth;
4) the dilatory tactics of lawyers;
5) neglect and laxity on the part of judges; and
6) Court vacancies.
Definition of Terms:
Alternative Dispute Resolution
It is defined as any process or procedure used to resolve a
dispute or controversy, other than by adjudication of a presiding judge of a
court or an officer of a government agency, in which a neutral third party
participates to assist in the resolution of issues. It includes arbitration,
mediation or conciliation, mini-trial, early neutral evaluation, or any
combination thereof.
Arbitration
A voluntary dispute resolution process in which one or more
arbitrators, appointed in accordance with the agreement of the parties
resolve a dispute by rendering an award. It is the reference by mutual
agreement or consent of the parties of a controversy or dispute to selected
persons for an informal hearing and extra-judicial determination and
resolution. The hearing is usually held in private and the decision of the
persons selected will be a substitute for a court judgment. This avoids the
formalities, delay and expenses of ordinary litigation.
Mediation
A dispute resolution procedure in which an impartial third party,
mutually chosen by the parties, acts as the referee to help the contending
parties settle their dispute. The mediator, unlike the arbitrator, has no
authority to make the parties reach an agreement. He serves as a clarifier
and facilitator without dictating settlement. The term mediation used
under ADR Law includes conciliation.
Mini-trial
A dispute resolution method in which the merits of a case are
argued before a panel created by agreement of the parties comprising
senior decision makers with or without the presence of a neutral third
person after which the parties seek a negotiated settlement.
Early neutral evaluation
An alternative dispute resolution process whereby parties and
their lawyers are brought together early in a pre-trial phase to present
summaries of their cases and receive a non-binding assessment by an
experienced, neutral person with expertise in the subject of the dispute.
Combination of Alternative Dispute Resolution
A particular alternative dispute resolution may be combined
with the other types of alternative dispute resolutions. The most common
is the mediation-arbitration (Med-Arb). In this kind of combination,
parties first proceed to mediation to define the dispute and settle as many
issues as possible, and then they engage in arbitration to settle issues that
remain unresolved by the mediator.
Class Action Administration
Method of resolving the claims of a huge class of claimants
with the least possible litigation expenditures and court cost through an
administrative agency in charge of maintaining and tracking statistical
days as well as overseeing restitution payments, appointed by the court or
chosen by the parties design a set of claims procedures.
Voluntary Settlement Conference
Just like mediation it is a non binding hearing; the neutral party
is allowed to express his opinions and views about the case and will be
obligated to formulate an advisory opinion to be submitted to the parties
for review and approval.
Mass Tort ADR Projects (Manville Personal Injury Settlement
Trust and A.H Robbins bankruptcy for claims of asbestos sufferers and for
claims related to the Dalkon shield, respectively)
Referee or Rent a Judge
A practicing attorney or a retired judge usually acts as a referee
who conducts a trial that incorporates the formalities of a regular court
trial, complete with a court reporter and the observance of the strict rules
of evidence.
Mock-Jury trial.
A mock jury contract sets forth all the provisions government
the dispute resolution process chosen by them, including how the mock
jury proceedings will be conducted.
Ombudsman
He is a fact finder or referee hired by businesses to deal with
disputes inside the organization. The objective is to solve problems and
disputes quickly and informally by hearing and investigating disputes
between workers.
Process Consultation
This is used if there is a long-standing relationship between the
parties and they encounter problems in resolving the disputes. Process
consultants act as counselors who focus on the process of negotiation,
assisting the parties in enhancing or restoring communication lines.
Court-Annexed Mediation
Means any mediation process conducted under the auspices of
the court, after such court has acquired jurisdiction of the dispute
Court-Referred Mediation
Means mediation ordered by a court to be conducted in
accordance with the Agreement of the Parties when as action is
prematurely commenced in violation of such agreement.
Chapter V
The Mitigation of Litigation:
A Cornucopia of Non-litigative Processes
Motivating Factors that contribute to the rise in demand ADR
processes:
1) Avoidance of high expense of litigation
2) Fear of lawsuit will result in an outcome far more adverse than
reasonably anticipated
3) Need to return workers involved in the law suit to more
productive activities
4) Wish to preserve and re-establish the business or inter-personal
relationship that was temporarily disturbed by the conflict.
Med/Arb (Already defined in this reviewer) The parties go through a
phase where parties in crafting a compromise agreement only if this goes
down in flames, the mediator will change colors-may not render a binding
award as an arbitrator pursuant to the agreement. However, Sec. 20 of RA
876 states, No Arbitrator shall act as a mediator in any proceedings in
which he is acting as an arbitrator;xxx is subject to strict interpretation.
Facilitation is a less active form of mediation. The neutral third party or
facilitator acts as a moderator in large meetings, acting as traffic police
officer directing the flow of traffic in the meeting and seeing to it that
everyone says his piece during the forum.
Mini-trials are not a trial but a rational and voluntary manner in
structuring a settlement of disputes between two big companies that are at
loggerheads over sticky business issues. This is otherwise known as rent-
a-judge.
Besides, mini-trial is a voluntary, confidential and non-binding procedure
that affects a speedy, cost-effective resolution of corporate conflict.
Lawyers present summaries of their cases to chief executives or other key
decision-makers representing both clients. (Linda Singer)
Mini-trial contract This is signed by the parties that contain provisions
governing the conduct of discovery, how hearing will be handled and a
few more important stipulations.
Class action administration is a sensible approach at dispute resolution
is to have an administrative agency that is in charge of maintaining and
tracking statistical data as well as overseeing restitution payments,
appointed by the court or chosen by the parties design a set of claims
procedures and forms that will be sent out to all the claimants.
Voluntary settlement conference is where the neutral party, unlike
mediation, is allowed to express his opinions and views about the case and
will be obligated to formulate an advisory opinion to be submitted to the
parties for review and approval.
Conciliation uses a neutral third party to clarify issues in dispute so that
the parties concerned may themselves arrive at a mutually acceptable
agreement.
Mass tort ADR projects
Rent-A-Judge incorporates the formalities of a regular court trial,
complete with a court reporter and the observance of the strict rule of
evidence but the parties may agree to modify or disregard most formal
rules of procedure, evidence and pleading with some limitations.
Mock Jury Trial
Ombudsman
Process consultation the process consultants (PC) differs from the
mediator in that there is no discussion of the specific issues or any attempt
to solve them. Thus, process consultants are often more like counselors
who help parties to get along better so that they can engage in better
negotiation and problem-solving.
ADR processes in US Government Agencies
International Commercial Arbitration
Small claims courts
Neighborhood dispute centers
Regulatory negotiation
Chapter VI
The sport of Non-adversarial lawyers
Leigh Steinberg, Effective negotiation is about exhaustive
preparation, utter clarity, heartfelt communication, and a sincere,
demonstrated desire to fully understand not just your own needs but the
needs of other party.xxx Jesus and Socrates were two of the best
negotiators of history. One is a form of syllogism, the other in the form of
parables. Rock and a Hard Place- The rock is litigation, which as a means
of resolving a dispute is frustrating, time consuming, expensive and full of
friction. The hard place is negotiation, which can often prove unavailing
as a means of reaching accord between two disputants; each of whom has
strong feelings about the matter. (Freund, Smart Negotiating, 1992)
LITI-GATION (Marc Deiner) Litigation is often used for leveraging. A
lawsuit is filed and pushed to the limit to force a favorable settlement
agreement.
Negotiation is a problem solving operation. (Romance Languages means
to do business)
Lawyers have a role to play in at least two crucial negotiation
schemes:
1) Dispute or litigation settlement
2) Transaction-planning to preventive law negotiations
Basic Negotiation Tactics
1) The wince
Well-timed flinch at the exact moment when the other party
announces his terms.
2) Silence
Staying absolutely quiet after making your offer or when the other
party says something that you find disagreeable
3) Good guy/bad-guy
Working with an actual partner to make it appear to the other party
that accepting the offer of the good guy is a much better alternative than
giving in the harsher terms bad guy
4) Limited authority
Buying time to obtain more authority from an imaginary principal or
a real person with greater discretion
5) Red Herring
Creating distraction to muddle the real issues
6) Trial Balloon
Raising questions designed to peek into the other partys position
without revealing your true objectives
7) Low-balling
Agreeing to the offer made by the other part and then start chipping
away at the terms of the original offer until the offer has been severely
altered
8) The Bait and switch
9) Advertising one product to bring people inside the store and finding
excuses to explain the unavailability of the advertised product then
quickly suggest that a different product be bought instead.
10) Outrageous behavior
Exhibiting socially unacceptable demeanor to rattle the other party
11) Written work
Presenting adhesion contracts to discourage question about the deal
12) The vise
Applying verbal pressure to force the other party To do better than
what is being offered and to gain concessions.
13) Trade off
Splitting the difference and seeking the midpoint
14) Nibble
Waiting for the major terms of the deal to be settled then asking for
the minor concessions to be included in the deal
15) Funny Money
Making mathematical calculations and dividing the payments over a
period of time to convey the impression that the other party is getting a
good deal.
Two major types of unassisted negotiations:
1) Combative Negotiator- who will emphasize only his own gains at
the expense of the other and employ hard line tactics, such as
exaggerating claims or even threatening to abandon the discussion if
he does not get his way.
2) Conciliatory negotiator-who will assume the role of a problem
solver rather than an intimidator.
Class of negotiations
1) Position-based negotiations often involve hard-ball methods because
it is premised on the presumed superiority of ones position.
2) Interest-based negotiation is much more candid and amiable
technique that involves the willing disclosure of all germane
information to the other party so as to explore all avenues of
satisfying the needs and interests of the other side of the least
possible cost and at the shortest possible time.
Leonard Koren and Peter Goodmans dead-lock breaking techniques
(1991)
1) Be positive and dont be put off by the good word no
2) Agree on easier terms first and skip over the points that are bogging
you down and come back to them late
3) Emphasize shared goals, get back to common ground and start
building up again
4) Reduce complexity, break down complicated negotiations into pieces
and solve each piece one at a time
5) Brainstorm with your opponent to generate various alternatives
6) Fine tune your agreement so that there is something that both of you
can find acceptable
7) Passing written proposals back and forth for comment
8) Calling a time out when things get rough and not going your way.
EXHAUST ADR PROCESSES BEFORE LITIGATION.