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ADR? What’s That?


February 15, 2018 by Linda Gallagher
Category: Court Decisions, AGO Opinions and Regulations

ADR? What’s That?

Me (listening to a friend describe a complex problem): “Have you tried ADR yet?

Friend: “What’s that?”    

Me: “I am so glad you asked . . . “

ADR may or may not be new to you. Either way, it's important, especially in public service where we work with community leaders, corporate entities, other agencies, public officials, supervisors, employees, and members of the public.

Alternative Dispute Resolution

Alternative Dispute Resolution (ADR) offers methods that are considered “alternatives” to litigation, the traditional — and often expensive — form of dispute resolution. Examples of how a municipality uses ADR might be to resolve change orders for a public works project or, perhaps, a potential annexation by a neighboring city.

ADR methods include negotiation, facilitation, mediation, and arbitration. These ADR methods are important tools to have in a municipal tool box. They help in our engagement and interaction with others, especially when it is important, if not critical, to prevent or resolve conflict. Often considered tools related to labor relations disputes, ADR tools are used in many other contexts including tort claims, public records requests, land use, contracting issues, construction disputes, interagency matters, and more. 

This article is about arbitration and mediation methods. Future blog topics will cover negotiation, facilitation, and steps to take in order to use ADR.

Arbitration and Mediation are both effective and efficient tools. They usually save time and money, especially when compared to litigated outcomes or prolonged impasse. Common ground is identified and relationships are often preserved and improved. The business of government and other business as well gets done with more success.

Arbitration

An arbitrator is a decision maker. RCW 7.04A.010 defines arbitrator broadly as: 

an individual appointed to render an award in a controversy between persons who are parties to an agreement to arbitrate.” 

Whether a dispute is subject to arbitration may be determined by agreement, contract, or law. Many written agreements have arbitration clauses for resolving disputes. Absent a written agreement, parties to a dispute may still agree to submit their conflict to arbitration.

The Uniform Arbitration Act (Chapter 7.04A RCW) governs many arbitrations in our state. Arbitration of labor disputes are under Chapter 49.08 RCW. Other statutes apply to specific types of cases.  See for example arbitration of health care actions under Chapter 7.70A RCW

Chapter 7.06 RCW requires mandatory arbitration of certain civil lawsuits in superior court where the amount claimed is under a certain dollar figure. This program is in counties with populations greater than 100,000 and other counties that have adopted mandatory arbitration.

An arbitration decision in superior court may be appealed and a jury trial may be requested. The right of trial by jury is protected by the Washington State Constitution, Article I, Section 21. RCW 7.06.070 provides:

“No provision of this chapter may be construed to abridge the right to trial by jury.”

Mediation

 A mediator is a decision facilitator. Unlike an arbitrator, a mediator does not decide a case for the parties.

Mediation is a process that brings parties together with a neutral mediator to resolve their differences through discussion and problem-solving. A resolution is reached when all parties voluntarily agree to the terms and conditions of the resolution. The cooperative, voluntary nature of mediation can preserve relationships between parties and produce win-win results. 

The mediator uses many types of mediation skills and acts as a facilitator, moderator, and go-between for the parties. It is not surprising that the statutory definition of “mediator” is very broad. RCW 7.07.010(3) notes:

A mediator is an individual who conducts a mediation.”

Mediators come from all walks of life and backgrounds. Many mediators are full-time, professional neutrals and many others practice mediation as part of other careers. They may or may not be attorneys.

Mediations are covered by state law under Chapter 7.07 RCW (Uniform Mediation Act) and mediation proceedings are protected by both privilege and confidentiality (see RCW 7.07.030, RCW 7.07.040 and RCW 7.07.050).  This encourages candid conversation and creative problem-solving.

For municipalities, however, the Open Public Meeting Act (OPMA) may apply and limit mediation confidentiality. RCW 7.07.070 states:

“Unless subject to chapter 42.30 RCW, mediation communications are confidential to the extent agreed by the parties or provided by other law or rule of this state.”

Further discussion of this issue is saved for another day.

Conclusion

ADR works, and it often works well. ADR tools include skills for improving and resolving just about any type of relationship conflict. 

Local governments benefit when their agency and employee disputes are resolved in a cost-effective and prompt way with mediation or arbitration instead of a trial in court or an explosive argument. The effective communication skills necessarily involved such as listening, understanding, empathizing, and negotiating are useful both at work in public service and at home in service to our families, friends, and communities. 

I encourage you to look for ways to effectively resolve the conflicts you encounter. Please consult with your local insurers, risk pool representatives, and your attorneys regarding ADR, and stay tuned for more from me on this topic.

Sample Resources

This is not meant to be a comprehensive list. There are many ADR resources throughout our state, in the United States, and beyond. These links may be helpful places to learn more.    

King County

Spokane County

Additional resources

Questions? Comments?

If you have questions about this or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772. If you have comments about this blog post or other similar topics you would like me to write about, please email me at lgallagher@mrsc.org.

About Linda Gallagher

Linda Gallagher joined MRSC in 2017. She previously served as a Senior Deputy Prosecuting Attorney for King County and as an Assistant Attorney General.

Linda’s municipal law experience includes risk management, torts, civil rights, transit, employment, workers compensation, eminent domain, vehicle licensing, law enforcement, corrections, and public health.

She graduated from the University of Washington School of Law.

VIEW ALL POSTS BY Linda Gallagher

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