Chapter 7: Alternative Dispute Resolution
Alternative Dispute Resolution or "ADR" refers
to techniques for the resolution of disputes outside full-blown
court proceedings. Over the years, numerous types of ADR have
developed – arbitration, appraisal, conciliation, convening,
early neutral evaluation, evaluative mediation, facilitation,
fact-finding, med-arb, mediation, mini-trial, moderated settlement
conference, negotiation, ombuds, partnering, special master,
summary jury trial, and rent-a-judge, among others. This chapter
focuses on two of them – mediation and arbitration –
and addresses some basic issues for ADR programs within administrative
qualifications and training of "neutrals,"
confidentiality of proceedings, and scheduling. Although a
couple of agencies have begun to use mediation in the administrative
hearing process, see Appendix B: Integrating Mediation
into the Hearing Process, what follows includes a basic introduction
to the topic for the uninitiated.
Dispute resolution is often described as a
spectrum varying by who controls the outcome, with negotiation
(result entirely due to parties' efforts on their own behalf)
on one end, and litigation (result determined by an outside
party) on the other. Mediation (assisted negotiation) falls
on the negotiation side of the spectrum, and arbitration,
employing a third party decision-maker, falls near the litigation
end. Each named process occupies an indefinite band on the
spectrum: just as "blue" describes numerous gradations on
a theme, so does "mediation," creating potential confusion
for those who seek precise definition. Generally, most forms
of ADR promote voluntary settlement by encouraging negotiations
among the parties. ADR processes also lend themselves to great
flexibility in constructing a program: casual, structured,
mixed, matched, or modified to suit a time, place, or case.
Mediation is negotiation assisted by a neutral
third party. The neutral's role is to help the parties reach
a mutually satisfactory agreement, not to act as decision-maker.
The mediator's approach can vary considerably. "Facilitative
mediation" helps the parties build consensus and focus on
their underlying interests. "Evaluative mediation" helps the
parties understand the strengths and weaknesses of their cases.
Mediation is informal and flexible; both the
process and the result may be crafted and fine-tuned on the
spot as needed. Resolutions of mediated disputes are unlikely
to be of the winner-take-all variety. They may also address
underlying non-legal issues. Mediation is ultimately voluntary.
Even when a tribunal orders one or more initial sessions,
it cannot command agreement; thus either or both parties may
Mediation works best when the parties are
willing to make compromises and reach a meaningful agreement.
The parties or their representatives should have the authority
to make such decisions. No one is anxious to see a carefully
negotiated settlement summarily overturned by the boss or
Mediation is particularly appropriate when
the parties have an ongoing relationship and thus must continue
to coexist. It can also work well when the case is complex
with many possible resolutions, or when poor communication
between the parties has caused the dispute.
Mediation begins with a joint conference of
the parties and the mediator. The mediator explains the process,
hears brief presentations from the parties, and asks questions
in order to clarify issues. The mediator may then meet privately
with each party and may use "shuttle diplomacy" to help the
parties reach a resolution. The process concludes with (or
without) a settlement agreement. Often mediation may succeed
in resolving a number of issues in a dispute, leaving the
balance for later litigation.
In arbitration, the parties submit their dispute
to a neutral decision-maker whom they have selected. Decisions
may be binding or non-binding. Binding arbitration is generally
final, with limited grounds for appeal. However, when a judge
mandates arbitration, the result is non-binding unless the
parties agree otherwise. Arbitration may be required by statute,
or it may be elected by the parties. An agreement to arbitrate,
like any contract, lets the parties determine the questions
to be arbitrated and the remedies the arbitrator may administer.
Arbitration may be appropriate when the decision-maker
should have subject-matter expertise, or when a large number
of cases with relatively low stakes will produce no decision
of vital importance to any one party.
Arbitration is conducted like an informal
judicial trial, but it dispenses with the formal rules of
civil procedure and evidence and the full-bore discovery that
draw out the time and expense of most litigation. As in a
trial, the neutral hears arguments and reviews evidence. However,
the arbitrator may determine procedure for the hearing, and
his or her decision need not include facts or reasons underlying
Neutrals are as varied as the contexts in
which they serve and the disputants who select them. They
may come from within the agency or they may be outsiders.
An insider who is familiar with the peculiarities
of an environment may be able to focus as readily as the disputants
on the issues at hand. On the other hand, an outsider's independence
may free him or her of any hint of institutional bias. Substantive
expertise may be essential in understanding the parties' positions
when the subject matter of the dispute calls for it. Legal
expertise may be essential when important legal rights are
at stake, as in a divorce, but so is a non-legal viewpoint,
to help focus on underlying non-legal issues, so even a divorce
dispute may be co-mediated by an attorney and a non-attorney.
Basic ADR training commonly consists of a
25- to 40-hour course of classroom instruction followed by
practice or apprenticeship with an experienced co-mediator.
In New York State, Community Dispute Resolution Centers (CDRCs)
provide 25 hours of training toward certification in ADR that
is required of its own volunteer neutrals. Some agencies,
such as the Department of Public Service, pair all or some
of the CDRC training with their own in-house ADR training
for administrative law judges. The Government Law Center at
Albany Law School has conducted ADR workshops and training
for the Department of Environmental Conservation, the Department
of Public Service, and other agencies, including hearing officers
and lawyers. Because some states require 40 hours of training
before neutrals may be certified to practice there, the National
Association of Administrative Law Judges, the National Conference
of Administrative Law Judges, and the American Bar Association
offer a 40-hour ADR course specifically for ALJs every few
months in different areas of the country.
New York State's CDRCs provide several types
of mediation training: basic training for mediators, continuing
education for community mediators, and special issue and advanced
mediation training, which may be offered in conjunction with
other state and local agencies. Basic training, required for
its own all-volunteer mediator corps under Section 849-b(4)(b)
of the Judiciary Law, includes 25 hours of classroom training
by a Unified Court System certified trainer with a state-approved
curriculum and training manual. Class work is followed by
observation and apprenticeship in order to earn initial certification
by the local CDRC director. To maintain certification, each
year a mediator must complete six hours of in-service training.
The New York State Dispute Resolution Association and the
Unified Court System hold training sessions and conferences
for CDRC staff and volunteer mediators, including in-depth
seminars and workshops. The mediator must also lead or co-mediate
at least three mediations per year to maintain certification.
Mediation works through open discussion. The
mediator, having no coercive power to command candor, works
instead to facilitate it. Because people will not reveal information,
strategy, or business or personal secrets if they fear they
will be used against them, part of the mediator's job is to
assure confidentiality of the proceedings through promises
by all present.
Legal protection of confidentiality is also
important, lest a party be confronted with its own secrets
at trial after a failed mediation. An agency may adopt rules
of confidentiality, as the New York State Department of Public
Service has done with regard to settlement discussions. Chief
Judge Judith Kaye's ADR Task Force proposed in 1996 that the
confidentiality rules it had recommended for the Uniform Court
System serve as a guide for a future statute applicable to
ADR broadly within the state. That report states:
(g) Confidentiality in mediation. (1) Except
as otherwise expressly provided by law or court rule, all
materials of the mediator are confidential and not subject
to disclosure in any judicial or administrative proceeding.
Any communication relating to the subject matter of the mediation
made during the mediation session by any participant, mediator,
or any other person present at the mediation session shall
be a confidential communication.
(2) If this subdivision conflicts with other
laws or public policies compelling disclosure of materials
or communications, the issue of confidentiality may be presented
to the court to determine, in camera, whether the facts, circumstances,
and context of the communications or materials sought to be
disclosed warrant a protective order, or whether the communications
or materials are subject to disclosure. In making such a determination,
there shall be a strong presumption by the court in favor
of confidentiality. The mediator shall not be called as a
witness at trial.
An example of ADR's flexibility is the variety
of ways that it may intersect with a hearing on the merits.
Mediation and its siblings (negotiation and settlement conference)
may turn up at any point in a dispute–before the case
is officially filed, later at the courthouse steps or even
well into litigation. There may be reasons to delay the proceeding
for mediation: when an issue in a case in progress depends
on the outcome of a negotiation; when all parties request
a delay; when experience with similar cases indicates a high
probability for settlement; or due to calendar pressures,
such as when other cases contend for limited administrative
resources. Some tribunals set a calendar when the case is
filed – a window of opportunity for mediation, with
a deadline to meet before the hearing on the matter begins.
Others like the NYS Department of Public Service opt for maximum
flexibility to avoid procedural impediments to good faith
negotiation. Still others do not delay the hearing.
In an administrative agency context, confidentiality
issues may arise where one ALJ serves both as mediator and
as presiding judge. Thus, if negotiations should fail on an
issue that was peeled off for mediation with a particular
judge, the same issue could soon reappear before the same
judge in a litigation context. Agencies have devised various
among them, assignment of separate judges
to ADR and litigation tracks in the first place, and waiver
of confidentiality by the parties when agreeing to one judge
for both tracks.
Policy, resources, environment, history, or
other considerations can influence nearly every aspect of
ADR program design and implementation, allowing the creation
of a program that corresponds to general or even unique needs.
However, certain aspects of ADR are edging toward standardization.
Guidelines emerging in the areas of confidentiality and training
or certification of neutrals bear watching amid the continued
growth of ADR in a multitude of contexts. State agencies use
ADR in many ways; for two examples, see Appendix C.