Increasing the Success of Alternative Dispute Resolution

While there are many benefits to using ADR, there are also tradeoffs and challenges.  Recent studies suggest that how a case is screened for ADR is critical, that ADR is more effective at reaching settlements than restoring relationships, and that ADR is not a cure-all for the difficult and complex issues facing municipal decision-makers in Vermont. To address these concerns, you should ask your ADR professionals and lawyers to advise you on the following factors as they apply in your situation.

ADR is most likely to be effective if, as appropriate in particular circumstances:

  • ADR resources and procedures exist in the municipality, state board, or court.
  • The municipality or other entity involved is prepared to use discretion and flexibility transparently, even-handedly, and with sufficient process and participation to prevent perceptions of special treatment, behind the scenes bargaining, and arbitrary application of local rules.
  • A common understanding of the issues exists so that a third party could be engaged to develop a joint assessment to review the issues and formulate recommendations on how to resolve the dispute or strengthen the community process.
  • There is sufficient interest, commitment, and trust to pursue the process with participation of all relevant parties and stakeholders.
  • As necessary to build confidence where positions have hardened, dialogue between parties is required. Issues that are highly controversial, or if the costs of failure are high, initial measures can be undertaken, such as postponing contentious decisions, carrying out site visits, technical discussions, and joint work on issues of mutual concern.
  • An experienced third party mediator, facilitator, or participatory planning advisor is available and can be agreed upon to serve at the outset to facilitate the process.
  • Available ADR options will fit the context, timing, and interests of the parties, with or without the involvement of a neutral.
  • There is agreement on mechanisms, process/rules and implementation arrangements, with or without the involvement of a neutral.
  • The estimated time, energy, and resources involved in ADR are no greater than those for traditional processes, unless the prospect for a satisfactory result is high.
  • Any resulting agreement can be adopted by formal legal mechanisms if required.