Alternative Dispute Resolution (ADR)

Alternative Dispute Resolution (ADR) refers to any means of settling disputes outside of the courtroom. ADR typically includes arbitration, mediation, early neutral evaluation and conciliation. 

The two most common forms of ADR are arbitration and mediation. Arbitration is binding and is a simplified version of a trial typically involving no or little discovery and simplified rules of evidence. Mediation is a less formal alternative to litigation and is usually not binding. Mediators are individuals trained in negotiations who bring opposing parties together and attempt to work out a settlement or agreement between those parties.

Two independent factors have given rise to the demand for ADR services in Minnesota:  1) the Minnesota court rules mandating non-binding ADR before trial, and 2) continuing efforts by corporate counsel to reduce litigation expenses by exploring avenues of preliminary dispute resolution.

Briggs and Morgan provides qualified mediation and arbitration assistance to clients, out-of-state attorneys and the courts. More than 25 Briggs attorneys represent clients in ADR and many are listed as qualified neutral mediators or arbitrators by the Minnesota Supreme Court.

Our goal is to achieve fast, equitable resolutions to complex business disputes. For most complicated disputes between reputable business firms, our experience increasingly demonstrates that ADR can achieve an equitable resolution faster, more cost-effectively, and with greater confidentiality and control. ADR is especially appropriate for resolving disputes between parties who wish to continue their business relationship, such as suppliers, joint-venture and merger partners, subcontractors, and franchisees.

Briggs and Morgan attorneys represent clients in a number of disputes regarding labor and employment, intellectual property, licensing, patent and trademark infringement, trade secrets, commercial transactions, and construction.

Briggs ADR lawyers also provide independent and neutral case evaluation to a party before and after litigation. Objectivity can be difficult to maintain when preparing for a high stakes litigation battle. In these situations, an external evaluation of the case from a neutral third party can provide a valuable perspective on the prospects of the case.

ADR and Employment
For more than 30 years, Briggs attorneys have represented clients in labor and employment disputes. This experience has positioned the firm to respond to the unique issues that exist in employment cases. Resolution of employment claims requires an in-depth knowledge of the substantive areas of employment law such as theories of disparate treatment and disparate impact, but also the significant emotional issues that make employment disputes difficult to resolve.

Applying ADR procedures in these disputes, particularly mediation or neutral evaluation, is an effective way to find a common resolution. By reason of experience and training, Briggs lawyers are particularly suited to assist parties in both the evaluative and facilitative process.

ADR services are valuable, not only for resolving the dispute at hand, but for providing a structure for employers to improve human resource policies and procedures, and avoid future issues. While certain cases do not resolve through ADR, the application of conflict management and dispute resolution principles to employment disputes at an early stage is important before costs mushroom, positions harden, and the emotional components that typify these cases intensify to the point where resolution by the parties is no longer possible.

ADR and Intellectual Property
ADR is a valuable resource for disputes involving intellectual property. Briggs lawyers have in-depth involvement in patent, trade secret, trademark, and copyright cases in a wide variety of subject matter areas. Our clients include large corporations, small businesses, nonprofit organizations and government agencies.

Licensing Disputes
Licensing issues often breed disputes. The interpretation of license terms, the applicability of the license to certain products or processes, and the calculation of royalties frequently lead to disagreements between licensors and licensees. Briggs' intellectual property lawyers are skilled in using mediation and arbitration techniques to resolve licensing issues. This type of resolution is often less damaging to the ongoing relationship of the parties than litigation proceedings and can be less costly than litigation.

Patent and Trademark Infringement
The expense of litigation in these areas can outweigh the benefit of any result that might be obtained. ADR, especially mediation, can produce positive results for the parties that would otherwise be obscured by heavily contested litigation. This is true prior to the commencement of litigation through its early stages.

Trade Secret Disputes
Trade secret disputes often arise between businesses and former employees or business associates. ADR offers the option of reaching a private resolution to benefit both parties. Briggs intellectual property lawyers have in-depth experience interpreting and enforcing non-compete and non-disclosure agreements, by far the largest source of dispute in this area. Our experience enables us to achieve results acceptable to all parties.

ADR and Commercial Law
ADR has become traditional business practice in commercial transactions and can be an effective avenue for resolving complex business disputes. If not mandated by commercial contracts, ADR is frequently court ordered. Resolution of business issues through mediation, arbitration or other ADR procedures is cost-effective, efficient, minimizes the invasion into the continuing conduct of the core business, and can reinforce important business relationships. Proceedings are informal and confidential, and scheduled at the convenience of all parties involved. Where discovery is permitted, it is limited in scope.

Briggs' corporate practice is expansive and includes securities, mergers and acquisitions, shareholder rights, purchase and sale of businesses, franchising, creditor rights―fields of corporate practice that require extensive training, knowledge, and experience. This experience, paired with ADR techniques, is a strong and effective force in achieving resolution of commercial disputes.

Several members of our commercial team are listed with the Minnesota Supreme Court Roster of Neutrals and the American Arbitration Association Commercial Panel of Arbitrators, and have extensive experience in dispute resolution.

ADR and Construction
The construction industry has been a leader in the application of ADR. The two primary types of construction documentation, AGC and AIA, both mandate mediation, followed by arbitration in the event mediation proves unsuccessful. Unless the standard construction documents have been modified, the question is how (not whether) a party to a construction contract should engage in ADR.

Since ADR is usually mandatory in construction disputes, the role of a member of the Briggs ADR group will typically be one of the following:

  • Advising and preparing a party for a mediation session or arbitration proceeding.  The selection of a mediator can be critical to the success of a mediation session.  The same applies to the selection of arbitrators, and therefore we stress early involvement.
  • In arbitration, a party will occasionally encounter (or negotiate) a provision that calls for each party to select an arbitrator and the two selected arbitrators then select a true neutral arbitrator.  Members of our ADR group have participated in arbitrations both as the party designated arbitrator and as the true neutral arbitrator.
  • The right to arbitration can be waived if the demand is not made in a timely manner.  We develop strategies regarding the timing of arbitration demands, and assist clients in obtaining court orders directing all parties involved in a project to mediation / arbitration.
  • Insurance issues, including the timely tenders of defense, can be complicated, and failure to give proper and timely notice to carriers can be critical in obtaining coverage and defense.  We regularly assist clients with these issues.
  • Contractors and owners need to be aware of statutory deadlines and requirements that exist regarding filing and perfecting of mechanic's liens and bond claims.

Briggs' ADR group has experience representing parties in hundreds of construction mediations and arbitrations. Several of our attorneys have also served as mediators or arbitrators in numerous construction disputes. We have been appointed as mediators or arbitrators by judges, the American Arbitration Association and by counsel representing parties.

ADR Questions and Answers

What is the difference between mediation and arbitration?
How do I know if ADR is right for my situation?
When should I begin ADR proceedings?
How do I find a qualified mediator or arbitrator?
How can I be sure mediation will produce a fair result?
Is the decision binding?

What is the difference between mediation and arbitration?
Both mediation and arbitration are forms of alternative dispute resolution. Mediation is a forum in which a neutral third party facilitates communication between parties to promote settlement.  A mediator may not impose his or her own judgment of the issues on behalf of the parties.

Arbitration is a forum in which each party and its counsel present its position before a neutral third party, who renders a specific award. If the parties stipulate in advance, the award is binding and is enforceable in the same manner as any contractual obligation.

How do I know if ADR is right for my situation?
ADR can be an excellent place to begin resolution proceedings, especially if your dispute involves a party you need or wish to maintain a lasting relationship. Minnesota is one of an increasing number of states that mandates mediation as a means to seek resolution and avoid courtroom litigation. 

Most civil disputes can be mediated, including those involving contracts, leases, small business ownership, employment and divorce. In addition, mediation is designed to surface and solve many problems leading up to and including the claim, and can prove effective in restoring long-term peace between parties.

When should I begin ADR proceedings?
Every claim carries a statute of limitations, meaning a window of time where a party may declare suit. ADR proceedings may begin at any point within this window of time, and are preferable early in the dispute process.  Early mediation can save time, money and relationships.

How do I find a qualified mediator or arbitrator?
Much depends on the type of dispute you are involved in. Many cities have community mediation centers which do an handle most types of routine disputes (consumer problems, neighbor disputes, landlord-tenant fights). For more complicated disputes (business termination, personal injury, breach of contract), it is often better to turn to a private mediation provider.

Briggs provides qualified mediation and arbitration assistance to clients, out state attorneys, and the courts. More than 25 Briggs attorneys represent clients in ADR and many are listed as qualified neutral mediators or arbitrators by the Minnesota Supreme Court.

How can I be sure mediation will produce a fair result?
In mediation, you and the opposing parties will work to craft a solution to your own dispute. Unless you freely agree, there will be no final resolution. This approach has several advantages over going to court:

  • Legal precedents or a judge's ruling will not dictate the solution.
  • If your dispute harbors undiscovered or undisclosed issues, mediation, unlike structured courtroom litigation, offers the opportunity and flexibility to uncover and flush them out.
  • Because mediation does not force disputants to undergo the drama of the courtroom, mediation tends to create a more relaxed environment, leaving parties more open to compromise.

Is the decision binding?
If the parties stipulate in advance, the award is binding and is enforceable in the same manner as any contractual obligation. If the parties do not stipulate that the award is binding, the award is not binding and a request for trial de novo (new trial) may be made.