So what does the yuppie obsession with the upscale caffeine scene have to do with Alternative Dispute Resolution? It’s about creativity and choice. Sip your mochachino and consider the following.

Just as one can walk into Starbucks and custom-order their venti decaf triple non-fat light vanilla latte with foam (all said without a breath!), litigants can custom-order the alternative dispute resolution process to fit their case. And because of the competition and influx of mediators in the field, they can practically custom-order the type of mediator they think will best suit their needs as well. However, one needs to be educated on one’s choices and, as we all know, walking into Starbucks or The Coffee Bean or Seattle’s Best or The Coffee Cat can be confusing these days. Reading the chalkboard menu isn’t usually enough to prepare us. Well, neither is reading the Judicate West, JAMS, AAA, or ARC’s list of mediators and arbitrators. Even reading the neutral’s profile is not enough to make educated choices. This article will address the multitude of ADR process choices that face disputants and lawyers, and suggest some of the underutilized tools that may help in the neutral selection process.

So when one decides they are interested in trying to resolve their dispute outside the often-risky courtroom, what options do they have? Get ready for more choices and verbosity: Voluntary Settlement Conference, Neutral Evaluation, Mediation, Binding Mediation, Med-Arb, Arb-Med, Judicial Arbitration, Binding Arbitration, Hi/Lo parameter Arbitration, Baseball Arbitration, Night Baseball Arbitration, Tri-Panel Arbitration, Mock Trial, Private Mini-Trial, and anything else one can stipulate to (all said in one gulp!). Almost as overwhelming as trying to order your Starbucks coffee! Let’s take little sips first.

A Voluntary Settlement Conference (VSC) is useful when the parties need an objective third party to evaluate the facts and give an opinion on the projected outcome. This process is often helpful when one needs to send a message to the other side, and they are using the VSC as just one step along the ADR continuum. The third party’s evaluation is often the impetus for settlement and acts as a reality check for the parties. It can also more clearly demonstrate one side’s weaknesses so that they can better prepare down the road for the mediation or arbitration. A Neutral Evaluation falls into this category also, and both processes can easily shift into a more facilitative mediation.

Mediation has the distinct advantage of allowing litigants to control the process and the outcome. In this process, parties communicate more and the mediator is to facilitate that communication, rather than imposing his or her opinions on the case value. Mediation is helpful when parties have an ongoing relationship (as in neighbors, business partners, employees, etc.) which they want to salvage. It is also useful when parties desire confidentiality and want to keep the outcome out of the public arena (as in the entertainment industry, the medical profession, employers wanting to keep good morale in the workplace, etc.).

Binding Mediation, Med-Arb, and Arb-Med are all hybrids of mediation. Binding Mediation allows the parties to informally represent their case with no expert testimony yet receive a binding result. Med-Arb allows the parties to mediate until and if they reach an impasse, at which point the mediator then acts as an arbitrator and gives a binding decision. In an Arb-Med, parties can arbitrate liability as an example, and then mediate damages. These processes still allow for the creative outcomes in mediation but with guaranteed closure.

The next batch are all hybrids of arbitration. Judicial Arbitration, a non-binding process is administered by the court, however 95% of the decisions are de-novo’d by one side. Binding Arbitration is the most similar to trial but without a jury and typically presented in a less formal setting. Hi/Lo Arbitration allows the parties to cap the lowest and the highest the payment will be if the arbitrator’s decision is outside either parameter. Baseball Arbitration is best utilized when there are extreme differences and the parties don’t want the outcome compromised or "the baby split." Both parties present the arbitrator with their pre-chosen figure, and the arbitrator has to pick between the two figures. This forces the parties to value their cases very realistically. Night Baseball Arbitration is a similar approach except that the arbitrator is kept in the "dark" about the figures as he or she renders their award. Whichever pre-chosen figure is closer to the award wins. Again, this forces parties to present more-likely outcomes but without feeling that they are biasing the arbitrator by presenting their figures before the hearing. Tri-Panel Arbitration (3 Arbitrators) can be more costly but gives the parties a system of checks and balances and assures them that the outcome is not just in one person’s control.

Some parties go to the extent of hiring a mock jury and a private judge to hear their case, so that they can benefit from the feedback of these sources. This can help lawyers focus on their trial strategy, realize where they might need to do more homework, what witnesses were and were not effective, and obtain a range of case value. Others go full force to set up a Private Mini-Trial so that they can choose their judge and the dates in which they will present their case. The advantages are similar to that of binding arbitration: knowing the style of the judge, having guaranteed dates, having the undivided attention of the judge, avoiding competition with the crowded court docket, and possibly having the case heard years earlier than in the traditional court system.

So now that we have a better flavor of the ADR process choices, one still has the immense responsibility of choosing the right neutral for that process. There are many difficulties associated with the selection process of a third-party neutral. The most common are lack of familiarity, relying solely on bench reputation, lack of objective referrals, and being influenced by isolated experiences or by different process experiences (i.e., judging what the mediator would be like based on their style in arbitration). Parties have many neutrals to select from in this competitive industry and should take advantage of that luxury by educating themselves before agreeing to a particular person.

Many of the above challenges can be overcome by several underutilized options: ask the neutral or the ADR provider for references and call those references, ask for a disclosure for arbitrations that will provide the neutral’s history with either party and the firms involved, ask to set up an informal phone interview with the neutral for mediations and ask the neutral about their substantive experience that applies to this case, and share these results with your client to see what your client will respond best to. These simple steps provide you and your client with more knowledge about your neutral. Knowledge only helps to build rapport and instill confidence during the hearing.

One path to expedite the selection and convening process is to allow your ADR provider to act as a resource for you. The case manager will often know more personal or fitting information about the neutral that may not be on their profile and that will apply to your case. For example, there is a mediator that is frequently selected for pregnancy discrimination cases because of the fact that she is a young mother herself. When clients realize this, they see how having a mediator with belly-on experience could comfort the plaintiff. From the sophisticated defense perspective, this bond may help the plaintiff to be more reasonable. In another case, the mediator was selected because the parties learned from their case manager that he had direct experience involving schizophrenia, and therefore had the knowledge and patience to handle the sensitive issues in their case.

Another illustration is the parties selecting a mediator who had the same disability as the plaintiff who was suing her employer for discrimination. The parties realized what an asset this mediator would be to facilitating their hearing in addition to being more cost-effective as they did not need to go into great detail on the effects of this disability. The point is that more often than not, there is much more psychology to choosing the right neutral for your case and the case manager can give you insights about the neutrals that may not be obvious.

A case manager may also help get reluctant parties to the table. It is natural for your opposing counsel to want to reject the names you propose, either to be difficult or because they think you must be out drinking lattes together. An ADR administrator can present options in a more neutral way, giving both sides plaintiff and defense references, sharing similar case examples, and establishing a comfort level with both sides. Frequently both parties agree with the administrator on the neutral the same day, which eliminates the back and forth tennis game of letter-writing that can go on for weeks. In addition, the case manager can help to arrange a neutral venue for the hearing and handle all the delicate business arrangements for the neutral, which can be time consuming.

So next time you consider the plethora of ADR process options and have difficulty in the selection of a neutral, don’t be overwhelmed with the variety of choices and crazy acronyms. Instead educate yourself and use this newfound knowledge to set your case up for success. Use your ADR provider as a resource to provide information and insight, in addition to saving you the time and immense effort it takes to convene cases. Heck, if you pay the going rate of $3 bucks for a latte, you want it to be good! With Alternative Dispute Resolution, the process and the neutral should meet or surpass your expectations too! With even a little whipped cream and cocoa powder to top it off!