ADR provides alternatives to lawsuits and trials. The three primary methods of ADR include negotiation, mediation and arbitration.
In negotiation parties work directly with each other to resolve their dispute. Attorneys may or may not be involved. Many issues are resolved through this peaceful method of discussion.
In mediation, a qualified person called a mediator assists the parties in resolving the dispute. A mediator has the education, training and experience required to help the parties settle the matter. The parties make the decisions, not the mediator. The mediator does not coerce or force a party to take a position. The parties maintain control of the outcome. They can either settle the matter in mediation or go forward with the litigation process or some other form of ADR. Mediation is generally confidential.
In arbitration, a qualified person makes a decision after the parties have presented their sides of the dispute. This decision can be binding or nonbonding. If it is binding, the arbitrator's decision becomes part of a contract between the parties. As with the mediator, the arbitrator has the education, training and experience to make the decision. Arbitration is also generally confidential.
Mediators and arbitrators are called “neutrals” because they are impartial and do not take sides. Other forms of ADR include: early neutral evaluation, summon trial and settlement conferences. Anyone can be a mediator or arbitrator in a dispute, so long as all parties agree. If the parties cannot agree on a neutral, the Court can often appoint one for you. The parties must pay for the neutral; if appointed by a South Carolina Court, the amount is generally fixed by law. Otherwise, the amount is the arbitrator's price the parties agree to pay.
ADR has become very popular because it can reduce costs, in time, money and stress for all parties. Attorneys are advising their clients that ADR is an option to resolve disputes. The courtroom is no longer your only choice.
Some of the other benefits of ADR can include: early resolution of conflict; avoiding the risks of litigation; and privacy of dispute.
Also, the parties control the outcome, not a judge or a jury; and the parties can be creative in resolving dispute, the law does not limit resolution.
Almost any type of dispute can be resolved through ADR. Business matters, neighborhood disputes, family or divorce issues, money disputes, or any matter involving conflict may be resolved. If you have tried to negotiate a dispute and the negotiations have failed, consider mediation or arbitration.
If both parties are willing to discuss the matter in good faith, mediation may be a proper choice. In mediation, the parties often have lasting acceptance of the resolution because they participated more fully in reaching that resolution than they might have done in court. Mediation is often as informal and flexible as the parties choose.
If the parties want someone else to make the decision, but want to avoid the costs, time and publicity of going to trial, arbitration may be the solution. Arbitration is less formal than a court of law, even though the parties do present their cases to a decision-maker.
ADR is still relatively new in South Carolina. It is usually voluntary, but is mandatory in such “pilot” counties as Greenville, Florence, Horry, Lexington and Richland counties. Expansion to all counties is expected in the next few years. Rules of the Supreme Court set out guidelines for mediation in circuit and family courts and arbitration in circuit court. These rules also set out criteria for becoming a mediator or arbitrator. The South Carolina Bar administers these programs for the South Carolina Commission on ADR. Click here
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This information was prepared to give you some general information on the law. It is not intended as legal advice about any particular problem. If you have questions about the law you should consult a lawyer. If you do not know a lawyer, you can call the South Carolina Bar Lawyer Referral Service weekdays between 9 a.m. and 5 p.m. The number is 799-7100 in Richland or Lexington Counties, and 1-800-868-2284 from other parts of the state.