Frequently Asked Questions

Neutral-Directed ADR™ (NDADR) is an alternative dispute resolution process designed to reach decisions on the merits of disputes at a fraction of the cost of arbitration, litigation, or the combination of failed mediation followed by another process.

The core innovations are that (1) there is no adversarial discovery: the neutral directly controls the gathering of evidence, which is sent directly to the neutral; and (2) the neutral issues findings of fact and conclusions of law as soon as justified by the law and evidence, without a massive trial at the end of the process.

In traditional mediation, the mediator typically knows only what the parties choose to present — which creates conditions for posturing and bluffing rather than authentic negotiation. And if no settlement is reached, the process is over and its costs are sunk.

In Neutral-Directed ADR™, the neutral has studied the core documents and researched the law before mediation begins and is usually the person who will decide the case if no voluntary resolution is achieved. Further, the neutral will do so without prohibitive cost to the parties. All of this dramatically increases the probability of a merits-based settlement. And, if no settlement is reached, the mediation phase will have effectively launched the next phase.

Arbitration is often described as "litigation-lite" — the process is similar, the cost is often comparable, and parties pay the arbitrator in addition to their own attorneys. Neutral-Directed ADR™ is designed from the outset to minimize partisan attorney involvement. The neutral directs discovery, avoiding the waste and gamesmanship of adversarial discovery. The neutral may issue partial or final decisions as soon as they are justified by the law and evidence, thus also avoiding the waste and gamesmanship of an arbitration hearing.

Neutral-Directed ADR™ is designed for most disputes between parties to a contract involving amounts in the low-to-mid seven figures or below. It is well-suited to construction disputes, employment agreement disputes, franchise agreements, licensing and IP disputes, restrictive covenants, supply and distribution agreements, many real estate disputes, and many insurance claims.

It is not designed for disputes involving very large amounts — where the stakes may justify the cost of full litigation and appeal rights — or for claims that are not amendable to stipulation as to the dispute resolution process (such as certain statutory or administrative claims where standard procedural rights cannot be waived).

The process is invoked by contract. Parties include a clause in their agreement adopting the Rules of Procedure at NDADR.com by reference and waiving any right to jury trial or other legal process. When a dispute arises, the initiating party demands Neutral-Directed ADR™ in accordance with that clause, as directed in the then-current Rules of Procedure.

The neutral is selected from the Directory of Neutrals in accordance with the Rules of Procedure. If the parties cannot agree, the Neutral-Directed ADR staff will select a neutral. Upon selection, the neutral takes an oath affirming that he or she believes him/herself to be without bias or conflict of interest and will endeavor to direct the process and decide the case in a manner that is legally correctly and economical.

If mediation does not produce a voluntary resolution, the neutral becomes the arbitrator and takes charge of discovery. This means interviewing witnesses through recorded meetings and ordering production of documents, taking party suggestions into consideration. The neutral distributes evidence to the parties and issues findings of fact and conclusions of law as soon as justified by the law and evidence. The case resolves either through settlement or the neutral's final decision.

The process is designed to function even if one or more party is not represented by an attorney. When attorneys are involved, their role is substantially reduced compared to litigation or arbitration — particularly in the discovery phase, which is directed by the neutral rather than driven by adversarial exchange between counsel. Attorneys may be involved in any hearings or briefing that the neutral orders.

Yes. The parties agree by contract to the process and to the neutral's authority to issue a final, binding decision. This agreement also constitutes a waiver of any right to a jury trial or other legal process for the covered dispute, including any right of appeal.

Parties pay only the neutral. Almost all neutrals are paid based on a billable hour rate. The neutral remits a modest hourly fee for the use of the Neutral-Directed ADR process, which the neutral may or may not pass through to the parties — this is a matter to be negotiated between the parties and the neutral at the outset. There are no administrative fees from NDADR beyond the neutral's hourly platform fee.

The primary driver of cost in adversarial dispute resolution is partisan attorney involvement — particularly in discovery, where opposing counsel spend enormous time and expense drafting and fighting over written discovery and disputing about what questions can be asked of what witnesses and what evidence will be shown to the jury. Further, as Stanford Professor Deborah Rhode once quipped, "lawyers will prefer to leave no stone unturned, provided, of course, they can charge by the stone." Neutral-Directed ADR™ eliminates the waste and gamesmanship of adversarial discovery and permits partisan briefing and argumentation only where the neutral identifies a need for such. The process is also designed to avoid duplication: the same neutral carries the case from pre-mediation through final decision, so rather than paying multiple attorneys to master the same evidence and law, they share the cost of a single neutral. Also, there is no massive trial at the end of discovery. The neutral simply decides the case when the neutral has the necessary evidence.

Experienced attorneys, former judges, and experienced neutrals who complete a certification process and agree to the Rules of Procedure may apply to be listed in the Directory of Neutrals. The process is designed to require a neutral who can study a case substantively — reviewing evidence, researching the law, and making binding determinations — so a neutral must have subject matter mastery or access to legal databases.

Neutrals set their own hourly rates, which are disclosed in the Directory of Neutrals.

Contact Brian Sabey directly at brian@ndadr.com to discuss qualifications and the listing process.