Pilar Vaile ADR - ADR Explained

ADR EXPLAINED

Arbitrator Pilar Vaile, Esq., focuses today almost exclusively on providing labor arbitration services. However, she is also a a certified ALJ and a trained, experienced mediator and facilitator. As such she can provide a variety of other neutral alternative dispute resolution (ADR) services, as needed.]

Ms. Vaile believes in and is committed to helping individuals and organizations achieve their conflict resolution or management goals at the lowest level of disruption possible. Additionally, in her experiences parties often can manage their own better with the aid of reliable information about their ADR options.
It is in that spirit, that this ADR page of general information is offered.

TABLE OF CONTENTS

I.			Introduction
II.			Mediation and Facilitation
III.			Arbitration and Administrative Adjudication

I. INTRODUCTION

Alternative Dispute Resolution—also known as “ADR”—is an umbrella term that refers to a variety of processes, theories and techniques implemented to resolve or manage conflict directly, and/or to promote better communication skills in the first instance. The “alternative” part of ADR usually signifies that it is alternative to more commonly recognized methods of handling dispute, such as going to court.

NOTE: the role of an ADR practitioner is quite different from that of an attorney. While serving as a neutral, an ADR practitioner—whether mediator, facilitator, coach or decision-maker—is ethically prohibited from acting as a legal advocate to either party. Thus, although Ms. Vaile understands the underlying legal issues and processes confronting parties, and may speak of them generally when appropriate to do so, she cannot provide those ADR clients with legal advice or services.

II. MEDIATION AND FACILITATION

Whenever two good people argue over
principles, they are both right.
- Marie Ebner von Eschenback

Every conflict we face in life is rich with
positive and negative potential.
- Kenneth Cloke & Joan Goldsmith

The aim of an argument or discussion
should not be victory, but progress.
- Joseph Joubert

At their most basic, mediation and facilitation can both be understood as "facilitated negotiations" or “facilitated dialogue.” In its Preamble, the Uniform Model Standards of Conduct for Mediators define mediation broadly as “…a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute.”

Mediation's most important principles are party self-determination, impartiality and confidentiality. Beyond those basics, however, mediation may utilize any number of techniques for getting the parties to speak to and listen to one another, such as:

facilitating free, open and nonjudgmental brainstorming;
getting the parties to speak together directly, but also breaking into separate confidential caucuses as necessary and appropriate;
engaging in active listening to identify underlying interest and concerns, and helping the parties to do the same;
helping the parties to focus on the future rather than the past;
helping parties distinguish between their positions (what they are arguing for) and the underling interest (what need they are seeking to meet), and identify win-win proposals in which all interests are met;
re-framing problems, especially as being shared or mutual;
using bridging phrases to re-direct negative statements, and to link the parties’ individual interests and goals;
providing venting opportunities, while still steering parties back to the issues at hand;
while in private caucus, engaging in reality checking and encouraging each side to realistically assess strengths, weaknesses, standards of liability, burdens of proof, and the risks and benefits of proceeding to litigation;
helping build trust between the parties, and maintain forward movement in negotiations; and details (the who/what/when/how) details in a clear and enforceable writing.

Facilitation can be understood as a cousin of mediation –it is a process in which a neutral third party helps a group work together more effectively to identify issues and solutions, enable all to be heard, and build a consensus.

Facilitation involves a coordinated discussion between multiple parties. During facilitation, she uses the same active, deep listing skills as in mediation but in a bit different manner. When facilitating, she helps the parties stay on task while they explore various points of need, contention, and/or agreement. This role also involves focusing, redirecting and engaging the parties, but more to develop a consensus—or to develop a full record of the discussion if consensus is not achieved—than to break any impasse. Finally, because of the difference in focus, reality testing is replaced by preplanning, and post-facilitation reporting.

In either system, Ms. Vaile encourages and assists the parties to look beyond a legalistic or “rights based” approach to analyzing their issues and interest, and identifying potential solutions.

III. ARBITRATION AND ADMINISTRATIVE ADJUDICATION

In Arbitration, which is usually provided for by labor, employment, services, or consumer contracts, the parties pick a neutral third party to hear and decide their case, much as a judge would but with less elaborate procedures. A major benefit of arbitration is the speed and finality of the final decision, as compared to a battle in court.

All wars are follies, very expensive and very mischievous ones …
[T]here never was a good war or a bad peace. When will mankind be
convinced and agree to settle their difficulties by arbitration?
- Benjamin Franklin

Administrative hearings, which are usually provided for by a statute or regulation, also involve a third party decision-maker. They arise as part of an administrative action, and can occur in an innumerable settings, such as labor disputes; employment discrimination disputes; and disputes concerning the issuance, suspension or revocation of professional licenses, to name a few. Indeed, today the average citizen is vastly more likely to be involved in some kind of administrative hearing than a judicial one. As such, the fairness and due process afforded in an administrative proceeding (as in arbitration), must always pass constitutional muster.

Arbitration and administrative adjudication are distinct from mediation in that the parties lose the ability to control or manage the outcome of the proceeding. Although confidentiality still applies in the arbitration setting, and impartiality applies in all three types of proceedings, party autonomy goes by the wayside and resolution or decision making is instead deferred to a neutral third party decision maker whose decision will be subject to only very limited judicial review. Administrative adjudications are only overturned for abuse of discretion, lack of substantial evidence, or clear error; arbitration awards for lack of jurisdiction, fraud, evident bias, or misconduct by the arbitrator. See, e.g., Federal Administrative Procedures Act, 5 USC § 706, and Uniform Arbitration Act (UAA), Sec. 23.

As such, the fairness and due process afforded in dministrative proceedings and arbitration must always pass constitutional muster, including notice and opportunity to be heard on facts relevant to the claims or defenses.

Conclusion

Ms. Vaile hopes this information has been of some help to you in understanding generally what ADR is, and what potential ADR tools exist. Please feel free, in keeping with ex parte and other contract or due process requirements, to contact her to help evaluate which method is most appropriate to your dispute resolution needs.