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Mo. Bar clarifies ADR terms

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If you're at all confused about mediation, arbitration or the nuts and bolts of either, the Missouri Bar has provided the following definitions to help clarify the issues.

Alternative dispute resolution. Any of a variety of techniques used to resolve disputes without formal adjudication. Rather than using judges, ADR techniques usually rely on specially trained professionals. In some types of ADR, these neutrals decide how to resolve the dispute. In other types, they help each of the sides to a dispute to arrive at their own solution.

Mediation. A structured dispute resolution process that depends on a neutral who assists each side in reaching a negotiated settlement of their differences. Most of the time, mediation is a voluntary process that leads to a signed agreement resolving the dispute and defining the parties' future relationship. The mediator plays a key role in this process, helping each side to the dispute negotiate, communicate and, usually, reach an agreement.

Arbitration. Unlike mediation, where the people who have the dispute are responsible for reaching an agreement, arbitration imposes an agreement on both parties. Arbitration is widely used in commercial and labor management disputes. In arbitration, the dispute is presented before a neutral or panel of neutrals who renders the decision after hearing arguments and reviewing evidence.

In binding arbitration, each side agrees before the process begins to abide by the arbitrator's decision. Court-ordered arbitration is usually non-binding and allows for an appeals process and trial.

Facilitation. This is a collaborative process that helps groups with divergent views reach a goal or complete a task.

Early neutral evaluation. The lawyers on both sides of the dispute present the facts and legal basis for their case to a neutral (usually an expert in a particular area of law).

The neutral gives them a prediction of the outcome of the case. After hearing what the neutral thinks of their dispute, the parties decide whether it is worth pursuing the case in court.

Neutral expert fact finders. These experts make findings of fact on special issues related to a case. This ADR form is very useful in factual disputes. The neutral's decision may or my not be binding.

Mini-trials. Both sides agree to present their cases before a judge in a much shorter time. Attorneys are allowed only brief opening statements. They hand over all their written materials to a judge or panel. The judge (or judges) may ask questions of the attorneys, and a few key witnesses may be called.

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