The legal system, author Henry Miller said, “is
often a mystery, and we, its priests, preside over
rituals baffling to everyday citizens.”
So when an opportunity comes along to reduce
that mystery and bafflement, many lawyers
and consumers are eager to participate. Enter
alternative dispute resolution.
ADR is a catchall term that describes processes
that let parties in conflict find solutions while
avoiding the cost and time commitment of a
trial. Those processes can include mediation,
arbitration and collaborative law.
As courts have become more clogged and costly
over the last decade, ADR has soared in popularity
for matters ranging from divorce to consumer to
corporate law. ADR may also maintain privacy in a
dispute and keep stress levels lower. Increasingly,
law schools are training students in the nuances of
navigating the legal system out of court.
The process is likely to continue growing
in popularity, says Irene C. Warshauer, an
arbitrator and mediator at the Law Office of
Irene C. Warshauer who has mediated more
than 100 matters.
So how do you find the right attorney?
Clients should look for someone “known
to them or an acquaintance as reliable and
trustworthy. Generally, someone with knowledge
of the subject matter, if it is complicated, helps,”
says Warshauer. “Someone they can work with;
someone who has enough available time.”
The types of ADR vary. In mediation, a neutral
party helps two sides try to resolve a conflict
through compromise. Collaborative law is similar
and particularly helpful in seeking peaceful
solutions in divorce or custody cases.
“A good mediator is someone who can go
back and forth between the parties until they can
agree,” says Ruth D. Raisfeld, a mediator and
arbitrator at Ruth D. Raisfeld, PC in White Plains.
“Think of diplomats, people who can be helpful
when two people say, ‘Can you help us negotiate
this thing?’ A successful mediation culminates
in an agreement, not a decision. A win is when
both parties walk out with an agreement and are
Mediation can be very helpful in employment
law, Raisfeld’s area of expertise.
“Both parties realize they’re going to have to
give something up,” Raisfeld says. “The process
helps the parties focus on the issues and getting
to a resolution. You want people in a problem-
solving mode who can walk in [a client’s] shoes. A
good mediator will have emotional intelligence.”
In arbitration, a third-party arbitrator hears
both sides of an argument, then decides the
outcome, acting almost as a judge. Some
attorneys caution that people should make
sure what rights they’re signing away, such as
accepting an arbitrator chosen by a company,
before entering into an arbitration agreement.
“The arbitration provision, which usually includes
a class action waiver, is often inserted amidst
boilerplate language in the proverbial fine print,”
says consumer law attorney Michele F. Raphael with
Wolf Popper. “It is most often non-negotiable and
take it or leave it, so that the consumer cannot, i.e.,
get the credit card or open the account unless he
The Peaceful Solution
With courts clogged and costly, alternative dispute
resolution is gaining ground BY MARY PILON
Other attorneys stress the upsides of arbitration.
For one thing, rules tied to evidence-gathering are
more relaxed than they would be in a trial setting.
“Arbitration is a creature of choice and has
proven to be an effective dispute-resolution
process since ancient Greece,” says Edna
Sussman, with SussmanADR LLC in New York.
“Arbitration is an excellent tool for the resolution
of many kinds of disputes because it is a process
Jill E. Alward, a consumer law attorney
representing businesses at Blank Rome, says
that, overall, she thinks arbitration works well
“I think, for both parties, the benefits
outweigh the pitfalls,” she says. “It saves money,
I think it saves time—it provides for a quicker
resolution of the issues. A resolution in any New
York court could take years, and an arbitration
could resolve an issue within months or a year.”
And, perhaps, make the rituals of law for
everyday citizens a bit less baffling.