Conciliation: A New Form of Dispute Resolution

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When people have a disagreement that can’t be resolved by simply discussing the problem, they may end up going to court for a resolution  – especially if the disagreement involves something as important as family issues or large sums of money. Going to court can be very expensive if you hire a lawyer, and it still costs some money (e.g., filing fees) if you don’t hire a lawyer. It’s very time consuming either way, especially if you don’t hire a lawyer.

And it’s not quick; courts are busy, many court systems are underfunded and overburdened, and it can be months or years before your case can be heard. That’s why other methods of resolving disputes have been developed. These other methods are commonly referred to as “Alternative Dispute Resolution” – “ADR” for short – and we discussed them in detail here. Mediation, arbitration, and other forms of ADR use neutral third parties to guide the adversaries to a mutually acceptable solution, faster and cheaper than a court case.

Many courts themselves require parties in certain types of cases – most frequently divorce or child custody cases – to pursue ADR before going to trial; the case then proceeds to trial only if the ADR process doesn’t produce an agreement. Another very common use of ADR is foreclosure mediation, which attempts to help homeowners stay in their homes and at the same time help lenders avoid the cost of a foreclosure action in court. We discussed foreclosure mediation here, here, and here.

ADR is usually intended to fully resolve the dispute. Joe says Fred owes him $10,000. Fred says he doesn’t owe Joe anything. An ADR session may suggest that Fred really owes $5,000, and Fred and Joe agree on that figure. End of story, unless Fred or Joe doesn’t like that suggestion and insists on going to court. However, note that going to court may not be an option if a contract specifies that arbitration is the only method of resolving a dispute; in this situation, the arbitrator’s decision is final.

But many disputes can’t be boiled down to a single issue, and many court cases involve the settling of related issues before the main issue is decided. To accomplish this, the parties file motions with the court, asking the court for a decision on the related issue. The other party may file a motion in opposition, asking for a different decision.

For example, after a civil case is filed, the next step is usually “discovery” in which each side asks the other side to provide documents or sworn testimony about the facts in dispute. One side may file a motion to avoid discussing certain things or turning over certain documents. The other side then files a motion asking the court to compel the discovery. Some motions are filed after the main issues is resolved, such as a motion to modify child support or visitation, filed after the original divorce decree. Motions are normally resolved by the judge in a separate hearing; in cases with a lot of motions, there are a lot of separate hearings that must be scheduled and attended. This can go on for a long time, and the judge’s decision on each motion may be preceded by long presentations, explanations, and arguments from each side.

The Fairfax Law Foundation, a non-profit charitable corporation set up by the Fairfax Bar Association, provides education about the law to the public, community outreach, and free legal services to indigent parties in Virginia’s City of Fairfax and Fairfax County. To help relieve court congestion and delays, and to help parties in court cases resolve related issues faster, the Foundation instituted a unique Conciliation Program to resolve motions and petitions.

The program’s Conciliators are trained, experienced volunteer lawyers. At the request of one or both parties, they help the parties resolve the dispute over the motion outside the courtroom. Scheduling and meeting places are more flexible than in the court system itself; some sessions can be done by telephone or fax. If the parties don’t agree in advance, Conciliators are even available on the day the motion is to be heard. If an agreement is reached, the parties may withdraw their motion, or advise the judge that they have come to an agreement so that the motion can be decided without a protracted argument.

Information about the Fairfax Bar Foundation’s Conciliation Program and many other ADR programs may be found online. The easiest way to find ADR program websites in your area is to check CourtReference’s “Self-Help and Legal Research” category for your court or county.


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