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  • Writer's pictureTess Whitaker

The Dance of ADR

Alternative Dispute Resolution (ADR) takes the shape of mediation and arbitration. Politically, ADR has lived to dance since BC but truly is forming a subculture more recently including federal, civil, and even unfiled cases within the judicial system.

ADR through the face of mediation brings the complaining party or parties together with the complained party or parties in a neutral location for the benefit of attempting discuss to come to an agreed resolution. As taught within the state certified mediation training provided from the Center for Conflict Resolution (CCR) in Chicago, mediation is not about compromise leaving both parties unsatisfied with the outcome. It is about finding the object of the true issue (often times masked by other feelings or expulsions of irritation) and what it really takes for each person to find peace with a resolution satisfying both sides so there is no remaining ill-will or rush to appear in front of a judge to beat up on the other side. In fact, mediation is most successful when a case is either never filed or the parties can skip into a courtroom to present the judge with their signed agreement resolving the issue that started the journey of lawsuits, petitions and complaints.

ADR as arbitration is a step above mediation and a step below formal litigation. To appear in front of an arbitration panel one must file a complaint either against an individual or a business. Often times the complaining party is a business who is injured by a client or individual. The arbitrator(s) is a panel of local attorneys who will hear evidence, review any supporting documentation, and then rule. Many businesses, especially smaller companies, are seeking the legal remedy of arbitration over full litigation as the process is faster, the ruling cannot be appealed, and the cost is considerably less. Individuals also can benefit from the speediness of arbitration court. Either party may represent themselves or hire an attorney to represent their interest.

In the state of Illinois mediation took on a new meaning effective January 1, 2016 when over 1,500 family laws were updated from the former 1970s statutes. The language in 750 ILCS 5/602.10(c) specifically states, "Mediation. The court shall order mediation to assist the parents in formulating or modifying a parenting plan or in implementing a parenting plan unless the court determines that impediments to mediation exist. Costs under this subsection shall be allocated between the parties pursuant to the applicable statute or Supreme Court Rule."

What does this new language in the statute mean for you, as a parent? There are many positives to this new language that many people miss because their emotions are busy stepping on the toes of their dance partner. For example, instead of waiting for a judge to decide on the allocation of parenting responsibility and time, you as individuals get to talk through the process with a trained professional to keep control of your rights and roles as the parents to your minor child or children. Another benefit, a properly trained mediator will not impose their view or the law specifically over your rights and roles as the parents. In fact, properly trained mediators guide the conversations without interjection of laws or opinion allowing each party to feel heard, involved, included, and in control of the outcome. Finally, mediation is a much faster process than standing before a judge arguing your emotionally driven perspective with the final outcome that of a judge and not necessarily what either party may hope to gain (meaning, you both can lose something).

Does mediation always work? Sadly it does not. Sometimes emotions are just too high, or there are just too many issues surrounding the problem to effectively allow communication to occur between the party or parties on either side. When a stalemate occurs then the mediator files a formal report with the judge presiding over the case that mediation failed. Properly trained mediators understand that commentary interjected into the failure report is not only damaging to an individual, possibly tainting the judge's view of that person or person's, but unprofessional causing harm to their mediation practice. Sometimes things happen and mediation just simply is not the best tool or avenue, therefore that is all the mediator needs to provide the court. Should the judge demand the mediator produce or provide more than that is an issue of the court and the mediator will have to answer the judge properly otherwise risk being held in contempt.

What can you do to help mediation be successful? First, show up on time. Everyone is busy and mediation does not necessarily always occur at the most opportune times during a person's day (work, childcare, etc. can interfere with a day causing additional distraction, concern and stress). To help, provide a list of two or three days and times on those days that you believe will have the least amount of conflict. And be prepared for two (2) to four (4) sessions. Make these sessions as close in time as possible to allow for the best and fastest resolution.

Second, come prepared. If you are distracted or have documents to present that are ill-organized, this can delay, slow, or stop the process completely. Organize your thoughts ahead of time on what your idea for mediation looks like, what you are attempting to get resolved, and some thoughts about what will resolve the outstanding issues.

Third, be prepared to be flexible. We all have our own ideas on what the other person may say, do, or what their issue looks like. Ultimately, these are assumptions. Sometimes assumptions are spot on while other times they completely miss the mark catching us off guard. Regardless of accuracy about the other sides position, it is important to keep an open mind because the mediator may help you formulate possible alternatives to your list that make sense for you and your opponent.

Fourth, attend all the meetings. Working through emotions and the paperwork is a process. Sometimes only one (1) one-hour session is necessary to get the issues resolved. However, if more mediation appointments are necessary because the other side is not ready to sign on the dotted line, respect the process and show up. In the end, your effort and willingness to work together despite emotions, can be the greatest solution to the problem with the longest lasting outcome.

Fifth, the final document is an agreement between all parties. Agreements are great because everyone walks away feeling they had an opportunity to say what they needed and were a part of the process to achieve this agreement. However, especially when involving children, these agreements will need to be reviewed and modified. The best news, you were able to do it with a mediator once thus increasing the likelihood of successfully mediating in the future. The other benefit, often times these agreements will last longer than a judge ordered resolution to your conflict based on the fact that a judge is not you or the other side and inserts their opinion over the ultimate idea each of you brings to court.

How to find the best mediator for you? Every judicial district has their own unique list of mediators based on their local rules. Winnebago County requires a mediator to either be an attorney or a psychologist. Other areas, only require mediation training. And some areas, the more rural, have little to no requirements. Absolutely no jurisdiction within the state of Illinois, and many other states, demand you use a court appointed mediator if the parties can agree to use an independent mediator to help handle their problem. If you are appointed a mediator by a judge than you are required to use that mediator - period. Again, loss of control. If you and the opposing party are able to work together to pick a mediator, the mediator should schedule a brief meet and greet to allow the involved parties to interview, discuss, meet and form an opinion on using the person's services to handle their problem. This means, again, you get to keep some control over the process of resolving your conflict.

The mediator should provide you an outline of how they handle matters, an agreement form, full disclosure on whether they knew either party ahead of time, and an opportunity for you each side to ask questions helpful to their determining if this is the right person or not. Remember that experience is not always the only question to ask, but where they were trained, their philosophy on outcomes, personal experience can be a key component, as well as how each party is associated to the other side. Just because a person may be a client of the attorney your mediator is associated does not immediately disqualify them from mediating your case should that mediator have the proper training and presentation to help you feel they will properly guide you and the opposing side to self resolution and agreement, not an agreement imposed by the mediator.

Mediation can help many areas of dispute, from family matters to business conflicts. Resolution is at your hands with the communication guidance of a trained professional.

For more information check out these websites:

What to Know Before Going into Arbitration, by Carl Jenkins, A. Scott Davidson, and Dominic Wreford

A History of Alternative Dispute Resolution, by Jerome T. Barrett with Joseph P. Barrett

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