A Primer on Alternative Dispute Resolution

By: Attorney Chris Conrad

Criminal proceedings are governed by what is generally referred to as the “Speedy Trial Act,” which requires trials to be scheduled within months.  Civil matters, whether they be in family, probate, or general civil court, are not controlled by a similar statute, and it is not uncommon for legal proceedings in this forums to be measured in years.  No class of cases limits what legal representation in any proceeding will cost, but it is fair to anticipate that the longer a matter continues the greater the costs will be.

To cut the burdens that both time and costs of litigation,  the courts, private companies and even individuals have increasingly sought out different ways to resolve disputes.   Known as “Alternative Dispute Resolution,” or ADR, These extra-judicial methods of trying to settle differences have consistently expanded over the past twenty years. 

In formal litigation the vast majority of litigated matters are now resolved without a judicial ruling.  To provide some perspective, in 2023 there were only 112 civil jury trials in the entire State of Wisconsin.  This small number is spread across 72 different counties and 261 circuit court branches across the State. The number of civil jury trials has declined 86%n in only one decade, and most attribute this decline to the effectiveness of ADR.

Methods of ADR

The most common form of ADR is arbitration.  While a method that may be ordered by a court after litigation has begun, most arbitration is contractual.  Today hardly anyone buys a car, uses a credit card or receives health insurance without executing a contract that requires any disputes to be resolved by arbitration. Most courts will diligently enforce a contractual arbitration provision, meaning that even if you tried to sue your health insurer claiming they owed you coverage for a procedure you would likely be forced out of court, and be required to submit your dispute to the method of arbitration designated in your contract.

The most common method of arbitration follows the rules and procedures of the American Arbitration Association, although they are far from the only organization to provide such services.  Arbitration typically involves submission of the dispute to a panel (sometimes 1, but usually three), who will set a schedule controlling the details of the presentation, much like a judge will schedule a trial.  The rules of an arbitration are usually pretty restrictive, resulting in a much narrower (by both time allowed and issues raised) presentation. 

Rulings from an arbitration are strongly presumed to be valid.  While those rulings can be challenged in court, absent demonstrable misconduct by the arbitrators and very limited other irregularities, will most likely withstand any challenge.

Mediation is required in almost every civil lawsuit.  Its success in bringing down the number of trials has seen the increasing use of this method before lawsuits are even filed. 

A mediation is conducted by a neutral third party. This is typically someone agreed upon by the parties.  Mediators are usually familiar with the law surrounding the dispute, as well as the various burdens the parties will face in presenting their side of the issue.  Most mediators strive to define the issues in dispute before meeting with each party to hear their positions and attempt to find areas of compromise.  It is often said that the best mediations leave both sides unhappy, but with a result that each can accept.

Mediators enjoy broad protection to isolate them from any litigation to give them the broadest chance to bring the parties together.  There are very narrow exceptions to the rule that what is said at a mediation stays at the mediation, and can never be used, offensively or defensively, against the other party.

While other forms of ADR exist they are more specialized, and far less common than the above.  DKB attorneys have successfully completed training as mediators and have guided numerous clients through the maze of ADR options.  Please contact us if you have a difference that you believe may benefit from Alternative Dispute Resolution.