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'Good points' and 'Bad points' of ADR Clause

(Non-grade exercise prior to start of mediation course)

Please list both good points and bad points of this alternative dispute resolution (ADR) clause:

According to an article found at http://www.mediate.com/articles/kichavenJ4.cfm

This article that provides information and an example on an alternative dispute resolution (ADR) clause that I discovered during my search. This article explains that the California legislature is working to improve the mediation and confidentiality. I had thought that when working with the ADR process that confidentially would be something that occurred without question.

According to the article:

The California Legislature wants to encourage mediation. Rojas v Superior Court, 2004 Cal LEXIS 6281 at p. 14. (July 12, 2004). Now the bad news. Rojas itself shows that the current legislation, California Evidence Code section 1115 et seq., fails to get the job done. The current legislation, as construed in Rojas, exalts the policy of absolute confidentiality;and absolute confidentiality alone;as the key to the encouragement and effectiveness of mediation.

I found it interesting especially after having lived in California, U.S.A. that this was not something that was already in place. In addition, the mediation confidentiality statute seems to have some work that needs to be done which is why the legislature wants to review the current legislation.

QUESTION:

1. List both good points and bad points of this alternative dispute resolution (ADR) clause.

Thank you.

Solution Preview

Please see response attached, as well as one supporting article. I hope this helps and take care.

FROM ATTACHED RESPONSE:

1. Please list both good points and bad points of this alternative dispute resolution (ADR) clause.

Response:

ADR: Benefits of the ADR Process

One of the strengths of ADR is its flexibility. The parties design the process and choose the third party neutral, based on their needs and comfort level. With the help of a third party neutral, the parties explore how to satisfy their underlying interest in their disputes.

ADR processes such as mediation and facilitation also help the participants:

o Separate the people from the problems;
o Explore all interests to define issues clearly;
o Brainstorm a variety of possibilities and opportunities;
o Establish a fair process and objective criteria; and
o Focus on effective communication and relationships

A third party neutral can also bring benefits to the process by:

o Easing trust problems between/among the parties;
o Seeking more positive and constructive communication;
o Orienting the parties toward problem-solving on both/all sides;
o Providing a reality test on various issues/arguments; and
o Helping organize multiple party, multi-issue proceedings to be more effective

Ultimately, the ADR process saves time, reduces costs, and may result in stronger relationships. While ADR cannot guarantee results, it succeeds when parties work cooperatively and focus on identifying and satisfying their underlying interests (http://www.ferc.gov/legal/adr/benefits.asp).

Disadvantages of ADR

- The focus on "absolute confidentiality" at the expense of quality assurance (www.jeffkichaven.com).
- In one study, there was widespread support across stakeholders for the use of ADR techniques to resolve disputes. ADR was not always seen as an alternative to resolution through the courts, however. Moreover, even the most enthusiastic supporters of ADR - ADR practitioners - still saw some potential disadvantages for disputants in using ADR.
ADR Practitioners' Views on the Disadvantages of ADR
Unlike other stakeholders, ADR practitioners tended to see any disadvantages of ADR for disputants as being related primarily to the particular ADR technique used or the methods by which ADR techniques are implemented. (See attached article for more detail)

Lawyers' Views on the Disadvantages of ADR

For lawyers concerns about ADR focus on ...

Solution Summary

Based on the readings and other research, this solution discusses the pros and cons of the alternative dispute resolution (ADR) clause.

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