Getting an Accident Recovery through Alternative Dispute Resolution; To ADR or not to ADR? Part I


This article discusses a trend in personal injury and insurance cases, i.e., the use of “Alternative Dispute Resolution” or “ADR.”

Laurence Olivier as Hamlet contemplating a different question.

I.  What is ADR?

Alternative Dispute Resolution or ADR is a means of resolving court cases outside of the courtroom.

ADR has grown into a small industry.  Essentially, ADR services have come about since the courts are greatly burdened with too many cases and too few judges.  This has caused backlogs in court calendars.   Same courts have waits of almost two years to trial once the parties state that they are ready for trial.  In some cases it can take years for the the completion of discovery and the eventual trial date.  Additionally, full-blown trials are very expensive from both the viewpoint of the time involved in actual trial and preparation and the cost of experts, witnesses, and other exhibits.

Therefore, under ADR a case which would take weeks of trial can be heard and resolved in a morning or a day.

Another reason why ADR developed is that regular judges do not have the time to devote to a case for settlement conferences.  Often, a judge will schedule 30 or more cases for the same morning.  The judge can devote only 5-10 minutes per case.  A mediation with a retired judge allows the party much more time.  It is not unusual for a private mediation to last hours or even days.  However, a mediation is more economical and preferable than a trial.

The ADR industry originated in California where retired judges would offer their services as “rent-a-judges” to litigants who sought a less expensive and quicker alternative than the courts.  These retired judges would act as either mediators or arbitrators on the case.  In essence, the parties of the lawsuit agreed to hire the retired judge and pay his fee in lieu of having their case decided in the courts by a judge and jury.

The rent-a-judge industry has grown so that there are private companies who offer ADR services with retired judges on their panels.  Some ADR firms have the exclusive services of retired judges who are highly regarded in the litigation world.  Two very active ADR firms in New York include National Arbitration and Mediation (www.namadr.com) and JAMS (www.jamsadr.com).

II.  Who Pays for ADR?

The parties to the lawsuit pay the cost of the retired judge.  Typically, the retired judge is hired through a service company, such as National Arbitration and Mediation.  Both sides agree to the selection of the “neutral.”  Both sides split the cost.

Even though this is an additional fee in the case, it is a very worthwhile expenditure if a settlement can be reached without the expense of a trial.

III.  What Kinds of ADR Methods Are Available?

The ADR service companies offer three types of ADR:

a)  Mediation;

b)  Arbitration;  and

c)  Cybersettle, i.e., settlement by blind bidding by computer.

The courts are beginning to innovate to offer their own type of ADR within the courthouse, such as

a)  Mediation; and

b)  Summary Jury Trials and Summary Bench Trials.

Subsequent articles will discuss each form of ADR.

IV.  Conclusion

Alternative Dispute Resolution can bring about a settlement or resolution of a case in a speedy and economical manner.  If ADR is available in your case we shall discuss it with you, and choice to proceed with ADR will be made only upon the client’s agreement.

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