Alternatives to Courts Growing in Popularity

Although many people turn to the courts to resolve disputes, there are alternatives to traditional litigation called "Alternative Dispute Resolution."

ADR is gaining in popularity because of the rising costs of litigation and the delay caused by the number of criminal cases mounting in an already overcrowded court system. With the "three strikes and you're out" legislation, ADR will increasingly play a more important role in resolving civil disputes.

There are a number of types of ADR, but probably the most widely used are mediation, arbitration, and settlement conferences.

Mediation—In mediation, the parties present their problems to a neutral third party. This third-party mediator does not decide the issue, but he or she helps the parties resolve the dispute themselves by facilitating dialogue and communication. Mediators do not impose decisions or give advice to the parties.

Mediation often proves to be the most effective resolution of disputes involving neighborhood and/or family problems. There are a number of mediation programs in San Diego County, including the San Diego Mediation Center, which is funded by private donations and by the city and county of San Diego.

Arbitration—Although the parties involved in arbitration also present evidence to a neutral third party, unlike mediation, the arbitrator actually issues a decision, which both parties have agreed in advance to accept.

Arbitration usually costs less, has more flexible rules and is quicker than bringing a case to trial. Because of the advantages of arbitration, a number of contracts provide that, in the case of disagreement, the parties will arbitrate disputes rather than filing a lawsuit in court.

Arbitration provisions are common in construction contracts, real estate sales agreements, automobile sales and lease contracts, and also are used commonly by doctors in trying to resolve disputes with patients. Usually when the contract provides for arbitration, the method of selecting an arbitrator and rules are spelled out.

The State Bar of California also provides for an arbitration forum for fee disputes with attorneys. For more information, call the Fee Arbitration Office of the State Bar at (415) 241-2020.

If the parties agree to arbitrate in a contract, the courts will enforce the arbitration provision and prevent either party from going to trial. The results of the arbitration are like the results of a trial, and are enforceable by the courts.

Settlement Conferences—This also is an effective method of ADR. In settlement conferences, a neutral third party offers advice in an attempt to resolve the matter.

The disputing parties in ADR generally agree upon the rules for the proceeding, with costs split equally between the two sides.

In most ADR proceedings, you can either present your own case or your attorney can present it for you. There may be special rules that apply to your ADR hearing and you should be aware of those requirements prior to presenting your case.

Even if you file a lawsuit in court, you still may be involved in ADR. The State Legislature is aware of the problems of our court congestion and has provided for sending cases to arbitration, mediation, and settlement conferences. Under state law, where the amount in controversy is under $50,000, judges may order such cases to non-binding arbitration or mediation.

James A. Testa is senior partner of the San Marcos-based law firm of Testa & Associates, LLP, and may be reached at 760-891-0490