Alternative Dispute Resolution Processes: How to Read Them

What are alternative dispute resolution processes?

Alternative dispute resolution (ADR) processes are ways of working on a dispute with the help of a neutral person, other than a judge deciding the case at trial. Most fall into three families: facilitation (a mediator helps the parties negotiate), evaluation (a neutral gives a view of the case), and decision-making (an arbitrator issues an award). What any one process does depends on the rule, contract or court order that sets it up, so the governing document matters more than the label.

This page is general legal education, not legal advice. ADR rules vary by court, state and country, and they change. If you have a dispute, a deadline or a document in front of you, a licensed attorney in the relevant jurisdiction is the person to ask.

Where does the formal definition come from?

In United States federal courts, the starting point is chapter 44 of Title 28 of the U.S. Code, as amended by the Alternative Dispute Resolution Act of 1998. 28 U.S.C. § 651(a) says an ADR process "includes any process or procedure, other than an adjudication by a presiding judge, in which a neutral third party participates to assist in the resolution of issues in controversy," and names early neutral evaluation, mediation, minitrial and arbitration as examples.

Federal agencies work under a separate statute with a longer list. 5 U.S.C. § 571(3) defines "alternative means of dispute resolution" to include "conciliation, facilitation, mediation, factfinding, minitrials, arbitration, and use of ombuds, or any combination thereof." The same section defines a "neutral" as an individual who "functions specifically to aid the parties in resolving the controversy."

Two definitions, two lists. The word "ADR" does not name one procedure; it names whatever the applicable rule says it names.

How can one map facilitation, evaluation and decision-making?

The three-family map below is this publication's own way of organising the field, not a category drawn from any statute. It sorts processes by one question: what does the neutral produce at the end?

Real processes blur the lines: a settlement judge may share views on the merits while helping negotiation. When a document names a process, ask which column it actually belongs in.

For a closer side-by-side of the two best-known processes, see Mediation vs. Arbitration: Key Differences.

What does a named federal court program actually offer?

The U.S. District Court for the Northern District of California publishes each of its ADR processes in detail, which makes it a useful worked example. Its ADR program page states that "Most civil cases are automatically assigned at filing to the ADR Multi-Option Program under ADR Local Rule 3," and that parties and counsel confer before the initial case management conference about early neutral evaluation, mediation, a settlement conference with a magistrate judge, or private ADR.

That is one court. Other federal districts and state court systems set their own programs by their own rules, so treat what follows as an illustration, not the rule where you are. In this program, ADR runs alongside the lawsuit rather than replacing it: the mediation, ENE and settlement conference pages each state that if no settlement is reached, "the case remains on the litigation track."

What does facilitation look like in that program?

The court's mediation page describes mediation as "a flexible, non-binding, confidential process in which a neutral mediator facilitates settlement negotiations." It adds that "The mediator generally does not give an overall evaluation of the case" and that the mediator "has no power to impose a settlement."

Two specifics worth looking for in any mediation document:

• Written submissions. Counsel submit written statements to the mediator "at least 7 days before the mediation," and those statements "are not filed with the court."
• Timing. The session is "presumptively 90 days after the order of referral, unless another deadline is fixed by the court."

The same program's settlement conference page shows a process that sits between columns. A judicial officer, "usually a magistrate judge, helps the parties negotiate," and settlement judges "might articulate views about the merits of the case." The judge who would preside at trial does not conduct it "unless the parties stipulate in writing and the judge agrees."

What does evaluation look like?

Early neutral evaluation (ENE) is a session, held early in a case, in which an experienced lawyer assesses the merits. On the court's ENE page, the evaluator writes a private evaluation that includes "An estimate, where feasible, of the likelihood of liability and the dollar range of damages" and "An assessment of the relative strengths and weaknesses of each party's case."

The page states that "Although settlement is not the major goal of ENE, the process can lead to settlement," and that "The confidential evaluation is non-binding and is not shared with the trial judge." Evaluators on that panel must have "Admission to the practice of law for at least 15 years," compared with "at least seven years (if a lawyer)" for the court's mediators.

That is the difference: a mediator in this program generally does not evaluate; an evaluator does, but the evaluation decides nothing.

What does decision-making look like?

Arbitration is the process in which a neutral decides. Two very different versions share the name, and the version matters.

Court-connected, non-binding arbitration. On the court's arbitration and other processes page, arbitration "is an adjudicative process in which an arbitrator or a panel of three arbitrators issues a non-binding judgment" after "an expedited, adversarial hearing," and "Either party may reject the non-binding award or decision and request a trial de novo" (a fresh trial, as if the arbitration had not occurred). Federal law limits this kind of referral. Under 28 U.S.C. § 654(a), a district court may refer a case to arbitration only "when the parties consent," and not where, among other exclusions, "the relief sought consists of money damages in an amount greater than $150,000." Under 28 U.S.C. § 657(c), a party has "Within 30 days after the filing of an arbitration award" to demand a trial de novo, and under § 657(a) the award "shall be entered as the judgment of the court after the time has expired for requesting a trial de novo."

Contractual, binding arbitration. Many contracts contain an arbitration clause. Under the Federal Arbitration Act, 9 U.S.C. § 2, a written arbitration provision in "any maritime transaction or a contract evidencing a transaction involving commerce" is "valid, irrevocable, and enforceable," except on grounds that exist at law or in equity for revoking any contract, or as chapter 4 of that title otherwise provides. Court review of the resulting award is limited: 9 U.S.C. § 10(a) lists grounds for vacating an award, such as where it "was procured by corruption, fraud, or undue means" or where "the arbitrators exceeded their powers." Whether a particular clause applies, and what it covers, is a question for a lawyer reading the actual contract.

Is ADR required, or just offered?

Under federal law, it is mostly offered, with a duty to consider it. 28 U.S.C. § 652(a) requires each district court to "require that litigants in all civil cases consider the use of an alternative dispute resolution process at an appropriate stage in the litigation." A court that chooses to require ADR in certain cases "may do so only with respect to mediation, early neutral evaluation, and, if the parties consent, arbitration."

State courts and private contracts follow their own rules, and some require a process before or instead of a lawsuit. This varies by jurisdiction; confirm the local rule or the contract term before assuming either way.

Is what you say in ADR confidential?

Sometimes, to a defined extent, under a specific rule. 28 U.S.C. § 652(d) directs each district court to adopt a local rule providing "for the confidentiality of the alternative dispute resolution processes." In the Northern District of California, the mediation page says communications made in connection with a mediation "ordinarily may not be disclosed to the assigned judge or to anyone else not involved in the litigation, unless otherwise agreed."

Note the qualifiers: "ordinarily" and "unless otherwise agreed." Confidentiality in ADR is whatever the governing rule, statute or agreement provides, exceptions included; no general promise of privacy should be read into the word "mediation."

What does ADR cost?

There is no single figure, and no process is reliably cheaper in every case. In the Northern District:

• Mediation and ENE. Mediators "shall volunteer up to two hours of preparation time and the first four hours in a Mediation," after which continuing requires agreement of all parties and the mediator, who "may then charge his or her hourly rate." ENE carries a parallel rule.
• Settlement conferences. "There is no charge to the litigants."
• Private providers. They "generally charge a fee."
• Special masters. The fee "is paid by the parties."

Those figures cover only the neutral; lawyer time and any later litigation are separate. Two figures matter here, and the second one is the one people skip: the neutral's fee, and the cost of the case continuing if the process does not resolve it.

How do you read an ADR process document?

Whether the document is a court order, local rule, provider's rules or contract clause, the same questions locate the important terms. This card is a checklist for preparing questions, not a recommendation of any process or forum.

The first row is there for a reason. The Northern District's program page announces that "Effective April 20, 2026, all ENE and mediation sessions shall take place by videoconference unless all participants agree" otherwise, while the separate mediation page describes in-person attendance requirements. Read the newest notice alongside the standing description, and ask which one governs.

When should a lawyer review the documents?

Before signing anything containing an arbitration clause, before agreeing to a settlement term, when a referral order sets a deadline, and whenever a document's effect is unclear. A licensed attorney in the relevant jurisdiction can say how these rules apply to a particular matter. For the court side of the picture, see the court basics hub; for related options, the dispute options hub.

Sources

• 28 U.S.C. § 651, Authorization of alternative dispute resolution (Cornell LII)
• 28 U.S.C. § 652, Jurisdiction (Cornell LII)
• 28 U.S.C. § 654, Arbitration (Cornell LII)
• 28 U.S.C. § 657, Arbitration award and judgment (Cornell LII)
• 5 U.S.C. § 571, Definitions (Cornell LII)
• 9 U.S.C. § 2, Validity, irrevocability, and enforcement of agreements to arbitrate (Cornell LII)
• 9 U.S.C. § 10, Same; vacation; grounds; rehearing (Cornell LII)
• U.S. District Court, Northern District of California: Alternative Dispute Resolution (ADR)
• U.S. District Court, Northern District of California: Mediation
• U.S. District Court, Northern District of California: Early Neutral Evaluation (ENE)
• U.S. District Court, Northern District of California: Settlement Conferences
• U.S. District Court, Northern District of California: Arbitration & Other ADR Processes