DISPUTE RESOLUTION PRINCIPLES (As revised 2010, and first published by the CDRC in 1995) Introduction: Since 1995, copies

of the CDRC’s Dispute Resolution Principles have been provided to many members of the California Legislature and their staffs, as well as to the Governor’s office. Copies have also been submitted with amicus briefs in significant cases heard by appellate courts. The Principles have been used to teach and to guide, and have proved a valuable touchstone in the process of drafting, amending and interpreting legislation involving ADR issues. However, it has been 16 years since the Principles were adopted, and the CDRC Board of Directors decided to take a fresh look. A proposed revised version was disseminated for public comment. The current version reflects edits based on comments received since the last CDRC Annual Conference. Please take a careful look and let us know your comments. Your insights concerning this important document will be highly valued. Address your comments to the CDRC.

CDRC Dispute Resolution Principles: Preface: Definitions

Section 1: Voluntariness and Availability Section 2: Integrity of the Process Section 3: Confidentiality Definitions: “Alternative Dispute Resolution” or “ADR” refers to dispute resolution processes other than traditional litigation and trial in a court of law or adjudication by governmental administrative agency. Alternative Dispute Resolution includes processes employed to resolve disputes by decision (e.g., arbitration), analysis and recommendation, (e.g., fact-finding or neutral evaluation), or facilitation of communication and understanding among disputing parties to help them achieve their own resolution of their dispute (e.g., mediation). “Arbitration” refers to the adjudication of a dispute by one or more neutrals (“arbitrators”) who issue a decision (“award”) after each party to the dispute has had an opportunity to present evidence and argument. Arbitration is often agreed to as part of a contract before the dispute arises. It is similar in structure to traditional litigation and trial, however, proceedings are typically less formal and conducted in private, rules of evidence are often more relaxed, and parties join in selecting their decision maker. Arbitrators frequently are attorneys or retired judges, but parties often select non-lawyers who

fact-finding. “Mediation” refers to a process in which one or more ADR neutrals (“mediators”) facilitate communication between disputing parties to help them reach their own resolution of their dispute in a confidential setting. “Dispute resolver” includes a neutral individual or panel of neutral individuals with the authority to resolve a dispute for the parties (such as an arbitrator or judge). collaborative law. Section 1: Voluntariness and Availability. settlement conferences and administrative adjudication. Informed Consent: Parties generally should be free to choose whatever dispute resolution process best meets their needs.Every person should have meaningful access to appropriate ways to resolve their disputes. conciliation. but also performs other functions. “ADR neutral” refers to a dispute resolver in an ADR process. facilitation. No person should be precluded from having access to litigation in the courts or public administrative systems unless they have knowingly and voluntarily waived that right. consensus decision-making. A. mini-trial. and any agreement reached in mediation or a mediative process should be consensual and uncoerced. To the extent participation in an alternative dispute resolution process is mandated. judicial reference. “Mediative process” includes dispute resolution processes in which an ADR neutral uses techniques commonly used in mediation. collaborative law. facilitation. neutral evaluation. Voluntary Participation: The values of a free society are maximized when parties voluntarily elect to participate in a dispute resolution process of their own choosing. the resolution of the dispute should not be binding. conciliation. or advisory arbitrator). ombuds. “Dispute resolution process” includes litigation. arbitration. trial. and the losing party has limited rights of appeal. as well as those who facilitate the parties’ own resolution of their dispute (such as a mediator).are knowledgeable in the subject area of the dispute. Arbitration can be non-binding (“advisory arbitration”). No party to a dispute resolution process should be considered as having . B. summary jury trial. An agreement to participate in an alternative dispute resolution process should be voluntary. or the product of an alleged agreement not entered into knowingly and voluntarily. unless the context otherwise indicates. or those who make non-binding observations or recommendations to help resolve the dispute (such as a fact-finder. but arbitration awards are more commonly binding. and the use of mediation or mediation techniques in conjunction with fact-finding or decision-making by the neutral. or any combination of these. Among these processes are neutral evaluation. “ADR provider” refers to an individual or entity other than a dispute resolver that provides the services of ADR neutrals or administers alternative dispute resolution processes. facilitation. neutral evaluator. or both. and. mediation.

willingly and knowingly. 1. Universal Access: The early resolution of disputes through processes of parties’ own choosing is both cost effective and consistent with democratic values. Government and the courts should encourage access to appropriate dispute resolution processes for all persons. including the advantages and disadvantages of using a specific process given the particular dispute. Education: Courts. the likelihood of savings in cost and time. and should promote the informed use of ADR processes through education. the disputing parties should be allowed to reach a resolution of their dispute freely. D. judges. Section 2: Integrity of the Process. court and other government personnel concerning the nature and availability of dispute resolution processes. . parties and available resources. C. Government and community organizations should make mediation and other dispute resolution services available to those who cannot afford to pay for them. example. government agencies. without prejudice to their legal rights or other remedies (subject to limitations imposed by law. and deployment of public resources. When parties craft their own resolution of a dispute. When parties are required to participate in a mediative process they should retain the ability to withdraw after commencement of the process. 2. the organized bar. Government as a Model: Government agencies should be encouraged to educate their personnel concerning dispute resolution processes and to seek opportunities to utilize ADR whenever costeffective and otherwise feasible. lawyers. without coercion. the resolution is more likely to endure without the need for external enforcement. differences among processes. Alternative dispute resolution processes can and should be used by government agencies not only to prevent or resolve internal conflicts. and the legal and other consequences of participation in such processes. such as in child custody conciliations or in collective bargaining agreements between unions and employers). dispute resolvers and ADR providers share responsibility for furnishing information to the public. 3. Funding: No person should be denied access to dispute resolution services because of an inability to pay. and other legitimate user charges. but also to enhance the quality and effectiveness of governmental decision-making functions.knowingly and voluntarily consented to participating in that process until the key features of that process have been made known to that party. Disputants with the ability to pay should be expected to contribute financially to administrative costs. fees for third-party dispute resolvers. Self-Determination: When the dispute resolver acts in a facilitative capacity (such as a mediator) as distinguished from a determinative capacity (such as an arbitrator or judge).

or persons with disabilities because of cost. including but not limited to dispute resolvers. If standards are set. ADR neutrals and ADR providers should be impartial. from the outset through the duration of the process. or ADR provider. the courts and bar associations. Dispute resolvers. The freedom of disputants to select their own dispute resolver should not be denied by setting qualification standards applicable to all cases or any one process. consumers. judges and court administrators. consumers. and competent to perform the task accepted. As a general principle. community ADR programs and other ADR providers. ADR neutrals and ADR providers should adhere to high standards of ethical conduct as established by recognized dispute resolution professional and practice associations. and should not involve or require a license which would preclude non-credentialed persons from providing or holding themselves out as a dispute resolver. and have the financial ability to pay for the services. and ADR trainers. Competence and Quality of Services Provided: Qualification criteria for dispute resolvers should be based upon relevant dispute resolution training. experience and performance. reliance on recommendations of established persons. judges and court administrators. Potential grounds for challenging the impartiality of a dispute resolver or ADR provider should always be disclosed. ADR neutral. cultural. community ADR programs and other ADR providers. should not require particular professional licenses or academic degrees. disadvantaged. D. experience and performance. The qualifications necessary to provide effective dispute resolution services vary with the context in which the dispute arises. A. and should adhere to recognized ethical guidelines. should not tend to exclude minority. nor should the possession of a specific academic degree or professional license disqualify a person from acting as a dispute resolver in any particular type of dispute.The ADR community should self-regulate the provision of ADR services in order to ensure the integrity of ADR processes and services. and other organizations and entities involved with dispute resolution. deliberative process involving representatives of all affected interests. Any credentialing program that may be adopted should be based on relevant dispute resolution training. Arbitrary caps should not be placed upon a dispute resolver’s or ADR provider’s compensation. Compensation: Dispute resolution professionals should be entitled to reasonable compensation for their services. as well as participant expectations. Impartiality: Unless parties knowingly and voluntarily agree otherwise. Ethical Standards: Dispute resolvers. dispute resolvers and ADR providers should not have any interest in the outcome or resolution of the dispute. B. dispute resolvers should not be required to possess specific academic degrees or professional licenses. and other factors. attorneys. they should be the product of a careful. and ADR trainers. attorneys. Parties should have a reasonable opportunity to become informed concerning any reasonable basis for challenging the impartiality of the dispute resolver or ADR provider. or otherwise. Compensation is especially appropriate when parties voluntarily select the dispute resolution process and dispute resolver. . must be responsive to input from all affected interests. However. C. and they should be capable of setting aside any biases in order to act impartially in rendering their services. including but not limited to dispute resolvers. state and local agencies. and may include legal.

Dispute resolvers should timely disclose information which might reasonably raise a question as to the dispute resolver’s ability to provide services impartially. the dispute resolution profession. Once parties have agreed to mediation. This accountability is for the benefit of disputing parties. in accordance with established law. it is essential that all parties be free to speak truthfully and fully without fear that their words might be used against them in an adversarial proceeding. Parties to an ADR proceeding should have the opportunity to select their dispute resolver jointly without unnecessary restrictions. Without confidentiality. which ADR provider or ADR neutral they want to use. Accountability/Immunity: Dispute resolvers should be accountable to exercise their judgment in good faith. self-determined exploration of differences and resolution of disputes would be compromised and mediation would become a less effective dispute resolution process. or other . Mediative Processes: To maximize the potential for resolving a dispute in mediation. Confidentiality and public policies supporting confidentiality are fundamental to the viability and success of many alternative dispute resolution processes. be removed from office or subject to discipline or sanction by appropriate public bodies or professional associations. procedures should be available for the aggrieved party to challenge the result. all statements made to a mediator. and when in the life of the dispute to engage in an ADR process. or similar judicial action. A. However. and accurately represent their qualifications. such as mediation. Necessity of Confidentiality. where an adjudication or binding determination by a dispute resolver is the result of undue bias or partiality. providers or participants in the dispute resolution process. the parties to a dispute should have the freedom to choose which dispute resolution process they want to use. close business or personal relationships.reasonable limitation on fees or costs may be appropriate when necessitated by inability of the parties to pay full compensation. Communications with a prospective mediator or ADR provider in anticipation of agreement upon mediation are integral parts of a mediation process and should be considered within the scope of mediation confidentiality. the trust necessary for candid. Section 3: Confidentiality. 1. particularly mediation and other mediative processes. Choice of Process. F. or institutional loyalties. interest. Agreements reached voluntarily through a facilitative process. but may. and the public’s perception of the justice of the process being employed. ADR neutral or ADR provider on the basis of bias. arbitrators and all public or private dispute resolvers should have immunity from legal actions for damages. or by the public interest nature of the dispute resolution services. Neutrals and Timing: To the maximum practical extent. The parties should have a meaningful opportunity to challenge any dispute resolver. maintain professional standards of practice and conduct. including disclosure of recent engagement by or significant contact with any of the disputants. should not be subject to being set aside because of bias or partiality in the dispute resolver. mediators. injunctions. E. partiality. subpoenas. ADR provider. In order to exercise their functions impartially and without fear of reprisal.

Reasonable expectations of confidentiality should prevail in the absence of agreement by the parties otherwise or overriding public policy. Declarations and Findings: Mediators should have no decision-making authority and ethically cannot require disputants to agree to particular settlement terms or coerce them to settle. C. or substantial bodily harm to an individual. All communications. Basic Principles of Alternative Dispute Resolution Program (ADR) In its August 2005 resolution (Resolution ALJ-185). the process in which that dispute resolver is engaged is something other than mediation or a mediative process. or the good faith decision to reveal confidential information in order to prevent a criminal act which the dispute resolver reasonably believes is likely to result in death. Arbitration: Confidentiality is often a motivating factor for parties to agree to arbitration. nor should any mediator consent. in any noncriminal proceeding. such as the requirement of some professionals to report suspected instances of child abuse. In situations where it appears likely that an exception to confidentiality may arise. the responsibility of serving in both a facilitative and adjudicative capacity in the same matter unless the parties knowingly and willingly consent to this dual role after being fully informed of its potential adverse consequences. or. or pursuant to a mediation or mediation consultation. . 2. unless all parties to the mediation knowingly and willingly agree to permit a broader report or statement. the same person should not be assigned. and all writings created for the purpose of. Where a dispute resolver is required by law to make declarations or findings or submit a report to a court or other legal authority. nor other entities or persons should require or permit a mediator. partial agreement. nor accept. dispute resolvers should inform the parties of these potential exceptions to confidentiality. should not be admissible or subject to discovery. whether before. to make declarations or findings of any kind regarding a mediation or its possible outcome beyond a statement of agreement. Med-Arb:: Since mediation may involve confidential disclosures to a mediator which normally would not be made to an arbitrator. when authorized by the parties. Neither courts. the Commission announced five basic principles that are the foundation of the CPUC ADR program: VOLUNTARY The parties usually must agree to submit their dispute to mediation or early neutral evaluation. during or after a mediation conference. and disclosure should not be compelled. negotiations. legislatures. An ALJ. Limited Exceptions: In limited situations. at the mutual option of the affected participants. 3. the need for confidentiality may be outweighed by other important public policies.participants in the mediation during the course of the mediation. non-agreement. and where in the discretion of the dispute resolver it is reasonable to do so under the circumstances. B. or settlement discussions by and among participants in a mediation or mediation consultation should remain confidential at all times. including after conclusion of a mediation.

or meet with a neutral to explore the feasibility of mediation. A prominent New York defense attorney and Criminal Court Judge said in all honesty. Litigation (Court Based Adjudication) Litigation is a lawsuit to be decided in court before a judge or jury. preventing some from taking their cases into the courts. but the outcome is that one person wins and one loses. Litigation is expensive. and distributive and integrative are two types of bargaining utilized in the ADR processes. and have statutes and documents interpreted. CONFIDENTIALITY Most ADR processes require confidentiality so that the parties' fundamental interests can be explored. Alternative Dispute Resolution (ADR) At some point in life. In addition. GOOD FAITH Those who engage in ADR should do so in an attempt to reach agreement--not to delay or secure tactical advantage. Court based adjudication and ADR are two of the methods used in settling those disputes. COMMISSION APPROVAL The CPUC will expeditiously approve settlements that are legally sufficient.however. then you must face the crowded court docket and be willing to wait as the lengthy process begins – a lengthy process which keeps disputes broiling and relationships torn apart. a battle between lawyers. “I have nothing to do with justice…Justice is not even part of the equation. may require parties to attend facilitated workshops. the result may be more beneficial to all. sometimes prohibitively. However. Even if one can afford litigation. proceedings. the truth is not always the end result. and perhaps several times. . put a stop to certain activities. Litigation Vs. not prolong. you will be faced with a dispute that needs to be settled and you must decide just how to reach a solution. TIMELINESS ADR should shorten. settlement conferences.” Through the courts and litigation you can obtain money. because court proceedings are adversarial. litigation can be intimidating and risky for the litigants. But even if a negotiated settlement takes longer.

one major consideration in making a decision as to the resolution method is the importance of the relationship between the two parties in the dispute.An additional issue is the fact that the dispute must be able to be translated into legal issues – so some disputes that seem real may not be able to be framed into a legal issue that can be decided in court. On the plus side. each person deserves their day in court if that is the method they prefer. Secondly. and it is appealable. There are several ADR processes which can be voluntary or ordered by the courts. The fact is that some forms of ADR like arbitration can prove to be just as intimidating. and. If your relationship with the opposing party is important to you or it is one that must be maintained. court decisions are based on precedent and are more predictable than alternative resolutions which can be formulated by the neutral party. Adjudication is public and has more safeguards than many other processes. In litigation most relationships are left unable to be repaired. Some states require persons to enter into arbitration or mediation before their case can be heard in court. However. One of the objections to litigation is that it can be intimidating – the powerful against the weak – the rich against the poor. litigation ends in a decision that is binding and enforceable. In these contractual cases arbitration decisions are final and cannot be appealed in court in most instances. Hoping the case can be settled in this manner. the less the other side has. arbitration is required for settling disputes. Alternative Dispute Resolution (ADR) ADR is a series of methods for settling disputes other than court based adjudication. In other cases such as employment and some other contracts. Most often this type of bargaining is utilized when there are fixed . integrative. it is time to perhaps consider an ADR process. Distributive: Distributive negotiating has a win or lose outcome – the pie only has so many pieces and the more one side gets. In the final analysis. states do this for economic reasons as well as to assist in clearing court dockets. regardless of the pros and cons of litigation. Methods of negotiation in ADR can be divided into two basic types: distributive.

but consider the time and the expense of court. rather than destroy. Even when some cooperative bargaining techniques may prove beneficial and are put in place. arbitration (binding or non-binding). relationships. mediation (non-binding). In order to be successful in integrative negotiations all the interests on both sides must be identified and fears must be addressed. there may be portions of the negotiations that can only be settled by dividing the pie or using distributive techniques. At times. religions and even countries. If the dispute you are involved in has a fixed quantity to work with and the other party is not a friend or someone with whom you must maintain a relationship. they all utilize either distributive or integrative strategies. To be successful in distributive negotiating parties must guard their information and try to get as much information from the opponent as possible. it becomes clear to neutral parties that they must mend the relationship before the money issue can be resolved – this means including integrative bargaining. Hardball is often necessary in distributive techniques and relationships become second place or are neglected and ignored. These techniques encourage cooperative problem solving which addresses all parties’ needs and interests. The goal is to have both sides work on a solution that will be beneficial to both and allow their relationship to remain intact. Negotiators here envision a pie with more unlimited pieces and desire an outcome that will maintain. Consider too. Distributive processes are often criticized because they put emphasis on the parties’ differences and lead to destructive actions. that ADR can also be expensive and if you chose to go to court when . then you could chose from court ordered adjudication.resources in dispute such as money or property. While there are many ADR processes. These processes cover a wide spectrum from binding arbitration normally narrow in scope to reconciliation being a lengthy process focused on mending relationships between people. or a combination of both. Personal relationships are low on the scale of importance. even in disputes that involve money. races. Integrative: Integrative bargaining is interest based and looks for a win/win solution.

Should you decide on ADR. focusing on interests.ADR fails. demanding concession. you might wish to avoid court and work to maintain those relationships. If. the relationship you have with the opposing party. You could utilize mediation. then you will need to decide whether this will be a distributive or integrative negotiation. The process here will be the distributive type – adversarial. a reconciliation process. Here the process will be the integrative type – parties are joint problem solvers. the outcome you desire. the dispute involves friends or lasting relationships. and the cost involved in each. The deciding factors in your decision of whether to go to court or utilize one of the many ADR methods will be the type of dispute. win at all cost. . restorative justice or restitution among others. on the other hand. then you can be faced with great expense. and working toward a wise decision that is good for all.