Practice Areas & Industries: Duane Morris LLP

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An Introduction to Alternative Dispute Resolution

In recent years, nonjudicial methods of dispute resolution have been growing in number and in use as clients and counsel seek prompt, cost-effective, less adversarial methods for resolving disputes. Increasingly, lawyers are serving as mediators and arbitrators in court-annexed and private proceedings, as third-party neutrals for early case evaluations, and in other neutral advisory or decision-making roles.

Benefits of ADR

The benefits of alternative dispute resolution (ADR) derive from its versatility and independence from court bureaucracy. The general concept of ADR has gained wide support among legislatures, courts and legal practitioners. Successful ADR programs ensure neutrality, provide a forum for mutual education and encourage the parties themselves, not just the lawyers, to join in the negotiating process. In some instances, ADR can afford quicker resolutions and lower costs than conventional court proceedings.

ADR is particularly appropriate for clients who must maintain or strengthen business relationships with adversaries. Mediation and conciliation, as opposed to adversarial adjudication, are especially helpful when there are ongoing business ties between potential litigants. In addition, ADR has the advantage of keeping witnesses off the witness stand, information out of the public record and the terms of a settlement confidential.

ADR is particularly well-suited to international disputes, since binding agreements reached in ADR can be more efficiently enforced abroad than a United States court judgment.

ADR techniques are used today in settlement negotiations for all types of complex cases, such as allocation of environmental cleanup liability, product liability claim resolution, loss allocation in toxic tort cases, intellectual property disputes and construction contract disputes, to name a few. The various techniques range from traditional mediation to partnering, which is a collaborative contracting process focusing on dispute prevention that can be molded to fit the particular needs and resources of the parties.

Services Available

Types of Proceedings

In place of courtroom judges, ADR proceedings typically use "neutrals" to guide the parties' own negotiations, render a decision or advise the parties. Many ADR professionals are former judges, attorneys or industry experts. Types of proceedings include, among others:

• Arbitration. The parties present their cases to a single arbitrator (or a panel of arbitrators) who renders a decision that is usually binding and usually not appealable to a court. The arbitration can be conducted under the American Arbitration Association rules, the International Chamber of Commerce, the rules of specialized associations or a private contractual agreement.

• "High-low" arbitration. The award is guaranteed to be within a specific range. If the arbitrator's award is higher or lower than the agreed range, the difference is disregarded.

• Mediation. Nonbinding mediation before an impartial mediator who is knowledgeable about the subject matter of the dispute is the most common ADR procedure used in recent years. A mediator acts as a go-between in a series of individual and joint settlement meetings. The decision is nonbinding and parties can walk away at any time.

• Mini-trials and simulated jury trials. Parties or their attorneys make their cases before a neutral or a simulated jury. No witnesses testify and the rules of evidence are relaxed. An advisory opinion from the "jury" serves as a basis for negotiation.

• Nonbinding arbitration. An arbitrator's decision is used as a basis for further negotiation.

• Other Methods. Other alternatives include settlement conferences before retired judges or professional mediators.

Range of Services

Duane Morris has offered services in mediation, arbitration, conciliation and other means of nonjudicial dispute resolution since ADR's inception. We assist clients in selecting an appropriate ADR mechanism and drafting the ADR contract provisions, and we represent clients in the ADR process. Our lawyers also serve as neutrals and independent arbitrators and mediators.

We handle construction matters of all types, including construction arbitration, mediation and alternative dispute resolution. Lawyers in our Commercial Litigation Group handle ADR proceedings involving other commercial and business disputes, including employment discrimination claims. Our bankruptcy lawyers serve as examiners, mediators and arbitrators in bankruptcy and insolvency matters.

Our lawyers also draft mediation and arbitration clauses for employment contracts, joint venture agreements, licensing agreements and other commercial contracts.

Our Lawyers

The Dispute Resolution Group consists of lawyers from several of the firm's departments and all of the offices. Many of our lawyers perform services as neutrals, mediators, arbitrators and conciliators. Members of our Dispute Resolution Group include a former judge and former prosecutors and bring a valuable perspective to the representation of clients in ADR proceedings. Several are members of the American Arbitration Association (AAA) and are listed as AAA professionals. Others have been active in publishing articles and instructional materials about ADR. All of our lawyers are oriented toward resolving disputes, rather than perpetuating them.

Duane Morris is a sustaining member of the CPR Institute for Dispute Resolution, a nonprofit initiative of 500 general counsel of major corporations, law firms and prominent legal academics in support of private alternatives to high costs of litigation.

For more information, please contact Katherine Benesch or any of the practice members referenced in the Attorney Listing.