ALTERNATIVE DISPUTE RESOLUTION.

Good lawyering demands more thoughtful legal and nonlegal problem solving to help clients
achieve their goals.
The adjudication process results in a winner and a loser and does not address the issue of each of the
parties’ interests.

ADR encourages holistic lawyering. (Entails finding healthier ways to resolve legal disputes by
transitioning and promoting peacekeeping and healing within the legal profession. I.e., it aims at
finding more healthy and sustainable solutions to legal problems. Holistic lawyering aims at helping
people beyond the immediate legal needs by looking at a broader context of their life.)
Dispute resolution falls into two categories:
(i) Adjudicative processes e.g., Litigation or arbitration where a judge, jury or arbitrator
determines the outcome.
In these processes, the parties have little control over either the process or the outcome. The
adjudicative process is public and formal and is conducted under the detailed procedural and
evidentiary rules, with a 3rd party, a judge, deciding the outcome.

Processes in which a neutral party has the ability to impose a binding outcome on the
participants are all forms of adjudication.
(ii) Consensual processes in which the parties attempt to reach an agreement.
ADR programmers require a legal system that allows them to operate. Article 159 of the
Constitution of Kenya 2010 vouches for the place of Alternative Dispute Resolution. It provides
that;

Processes that authorize the neutral party to facilitate, persuade, pressure parties but not to
impose a result on them are a form of assisted negotiation.
(2) In exercising judicial authority, the courts and tribunals shall be guided by the following
principles
(C)Alternative forms of dispute resolution including reconciliation,
mediation, arbitration and traditional dispute resolution mechanisms shall be promoted subject to
clause (3).
(3) Traditional dispute resolution mechanisms shall not be used in a way that;
(a) contravenes the bill of rights
(b) is repugnant to justice and morality or results in outcomes that are repugnant to
justice and morality.
(c) is inconsistent with this constitution or any other written law.
ADR is a method of dispute resolution that is alternative to litigation.
NB/ The more formal the process of ADR, the higher the level of involvement by a third party in the
process. Parties do not have a say in the procedure but instead are bound by the rules of procedure
which they have to follow.
E.g., in arbitration, the level of participation by the parties is higher because they are at liberty
to decide which rules apply or even the venue.
As you approach the more formal processes like litigation, there is increased formality- dress
code, manner of address and references to the judges as your honor, formality of pleadings.
The more formal the process of dispute resolution, the more the likelihood of it destroying the
relationship between the disputants. E.g., a court ordering the husband to pay alimony to the wife will
only be detrimental to the relationship/marriage.
The more formal the process, the more expensive it is. The standard practice in arbitration for
instance, it’s that the arbitrator is paid hourly. However, he is free to choose a method of payment that
best suits him.
The process of litigation takes longer. Rules of procedure are rigid and the judiciary has a
workload which makes most cases take longer than necessary.
The more formal a process of litigation is, the higher the focus on the rights of the disputants
rather than their interests. The interests of the parties are usually in having long lasting relationships.
However, this is trumped on during the enforcement of their legal rights.
Dispute Prevention.
1. Provide people with dispute resolution training. It provides people with skills to prevent
unnecessary chaos.
2. Partnering. Where may people be involved in a particular project, they should meet and
decide on how to deal with any disputes that may arise. EG, decide whose decision is final in
the event of a conflict.
3. System design. Deciding in advance what method to use in dealing with conflicts that arise.
Negotiation.
Negotiations are either dispute/deal making negotiations
In dispute negotiation, parties are in a conflict over an event that occurred. E.g., a contract that
was breached.
- In dispute negotiation, the subject of the conflict is usually susceptible to resolution by a
third party e.g. a judge or arbitrator while in deal making negotiations, the issues are
resolved by the parties themselves.
- Therefore, dispute negotiation is often a prelude to litigation between the parties.
- Failed deal making results in a loss of bargain and at times could result in litigation.
(Hoffman v Red Owl Stores, Inc. 26 Wis.2d 683, 133N.W.2d 267 (1965))
- Plaintiff owned a bakery but wanted to operate Defendant grocery store franchise.
Defendant representative strung him along and gave advice in how to make it happen,
promised that it was set to happen and Plaintiff sold his bakery and moved in reliance
on the promise. Defendant had made numerous promises but not enough that would
establish a contract to establish a store that Plaintiff would run.
- Synopsis of Rule of Law.
- Promises that a party can reasonably expect will be relied upon, are relied upon may be
enforced to prevent injustice even if the promise itself would not be sufficiently definite
 to meet the requirements to form an offer for a binding contract.

- Facts.
-
First, on suggestion, Plaintiff bought a small grocery store to get experience and then
sold it on the advice of Defendant representative, Lukowitz and possible lost some
lucrative profits in so doing.
Then, Plaintiff bought a lot selected by Defendant moved his family to the area and
sold his bakery in reliance on statement to “get money together and we are set.”
A number of agreements to get the grocery store up and running failed. Plaintiff
rejected a final arrangement which would require his father-in-law to loan money as
gift rather than a partner. Negotiations broke down.
- Issue.
- Whether the promise necessary to embrace a cause of action for promissory estoppel
must contain all the essential details of a proposed transaction necessary to be
equivalent to an offer that could form a binding contract if the promise were to accept
the same.
- Held.
- Promissory estoppel could be invoked when necessary to avoid injustice. Restatement
Section 90 does not require the promise to meet the requirements of an offer that could
ripen into a contract. Rather here since it was shown that the promisor could reasonably
expect the promises to induce action, the promise did induce the action and injustice
could only be avoided by enforcement of the promise. Defendant had to pay the
amounts lost by the plaintiff due to his reliance on their unkept promises.

- Discussion.
- Promissory estoppel embraces some discretion on when it is necessary to avoid
injustice. In such a case, a court will not adhere to the formal requisites of contract
formation, but will examine facts to determine whether it is necessary to enforce some
promises in the interest of justice.

Deal making negotiation encompasses:

(i) Distributive bargaining.
In this kind of bargaining, the individuals believe that there are limited
resources to divide and therefore individual gain rather than joint gain is sought.
The negotiator engages in positional bargaining (Claiming a particular position
and arguing for it throughout the negotiation process.)
To ensure that their position is realized, the negotiator takes an extreme position
and makes a few ‘concessions’ to arrive at the desired position. Distributive
bargaining is greatly influenced by;
(a) Information asymmetries
(b) Manipulation of information to influence the opponent’s perception.
NB/: There is a ZERO-SUM DIMENSION to distributive bargaining where more for me
automatically means less for you. Most negotiations are zero sum situations because the seller
wants the highest price possible while on the other hand the buyer wants the exact opposite.
 (ii) Integrative bargaining.
The parties’ goals are not necessarily at odds with each other.
Mutual gain is possible and often times, desirable. Integrative bargaining usually involves
multiple issues so that it is possible to develop several alternative and mutually beneficial
solutions.
The negotiators usually focus on the underlying needs and concerns supporting a particular
position.
Examples:
The tenants in an urban apartment complex suffered serious interruptions of services during a strike
by maintenance workers. After conditions became close to intolerable as rats, roaches, and other
vermin ran rampant, the tenants started a rent strike. The landlord demanded that the ten ants pay
their rent and threatened legal action. The tenants hired an attorney and agreed that if a case were
brought to court by the landlord that they would all testify to the above-stated facts.
Consider the type of negotiation process that could take place in this case. The landlord and a
tenant's lawyers could view this as a distributive bargaining problem and posture the bargaining so
that it becomes an adversarial, win-lose proposition. More money for the landlord means less money
for the tenants or vice-versa.
If the negotiation failed, however, the parties would end up in court. Both sides would then risk a total
loss. Litigation would only prolong the bad conditions in the building (assuming the maintenance
strike continued) and the landlord's need for the rent money. The publicity from the litigation could be
harmful to both the landlord and the tenants.
Alternatively, the lawyers could help their clients focus on the opportunities that exist for joint gain,
thereby transforming this negotiation into an integrative bargaining context. Both the landlord and
tenants could explore ways to furnish the services until the maintenance strike ended. The tenants
could agree to pay the rent with an abatement until the repairs were made. Both sides have much to
gain from a speedy resolution of the issue. The tenants hopefully would have the necessary repairs
made to their building and the landlord would receive rent money with which he could arrange to
have the repairs made and make the mortgage payments

It is an informal process that involves parties meeting to identify and discuss the issues at hand so as
to arrive at a mutually acceptable solution without the help of a third party. 1Negotiation is highly
autonomous. Parties reach decisions without the intervention of third parties.
It is also defined as a process involving two or more people of equal or unequal power meeting to
discuss shared and/or opposed interests in relation to a particular area of mutual concern. 2
Negotiation aims at avoiding the over emphasis of how the dispute arose and instead aims at arriving
at a solution that satisfies the mutual interests of both parties. I.e., negotiation aims at arriving at a
“win-win solution” for the dispute at hand. The whole point of parties choosing this consensual
process is to achieve an advantage that I not possible by unilateral action.
It is any form of communication between two or more people for the purpose of arriving at a mutually
agreeable solution.
1
Kariuki Muigai, Alternative Dispute Resolution and Article 159 of the Constitution.
2
See generally, “Negotiations in Debt and Financial Management”, United Nations Institute of Training and
Research, (UNITAR), (December 1994).
 - The disputants my represent themselves or by agents. i.e., lawyers may act as agents
representing the clients. However, prior to the actual negotiation, the lawyer works with the
client to determine the clients’ goals and objectives. During negotiation, the agent must
inform the client of what is going om and must protects the interests of the client. The lawyer
is involving in the negotiation processes to serve the clients’ interests and not theirs.
- At the end of the negotiation process, it is the clients and not the lawyer who decides whether
or not to accept a particular settlement offer.
- Disputants have control over the negotiations.
There are 2 styles of negotiation:
a) Competitive bargaining style/hard bargaining.
b) Co-operative bargaining style/soft bargaining.
A) Competitive bargaining style.
It is also known as adversarial bargaining. The primary goal of the lawyer who engages in competitive
bargaining is to maximize individual gain. To achieve that goal, the negotiator engages in positional
bargaining. In positional bargaining, the negotiator adopts an extreme position and advances
arguments to support that position. He then makes a few ‘concessions to finally reach the desired
position.
The adversarial negotiator stays close to the client’s position and maneuvers and structures the
negotiation process so that it moves through those positions.

In THE MANAGER AS NEGOTIATOR, adversarial/competitive negotiators are described as ‘the

value claimers whose object of negotiation is to convince the other party that he wants what you have
to offer more than you want what he has, you have all the time in the world while he is up against
pressing deadlines.’
The competitive negotiator perceives the issues as distributive. The negotiation process is viewed as a
zero-sum game at the end of which there will be a winner and a loser.
The negotiators are more concerned with the substantive results and advocate extreme positions.
In this kind of a negotiation, false issues are created to mislead the other negotiator and they even
bluff to gain an advantage.
The negotiators rarely make concessions and if they do, they do so arguably and may intimidate the
other negotiator.
Advantages
- Hard negotiator is not open to easy manipulation.
- Hard negotiator is likely to lead the negotiations especially if negotiating with a
cooperative negotiator
Disadvantages.
- The solution in cases of competitive bargaining is fragile and short-term. One party
may feel the compromised too much and this may create ill feelings.
- It may harm the relationship between the parties. One party may feel they have
compromised much and therefore are disadvantaged.
- Since the hard negotiator is only concerned with achieving his end, chances of failing
to come to a more amicable solution are high.
 - The hard negotiator may fail to consider the interests of the other party since they are
no ready to compromise.

B) Cooperative bargaining style.

Usually also known as the problem-solving approach. It usually focuses on the opportunity for
joint gain rather than individual gain.
The negotiator usually views the problem in an integrative context. He believes the problem has
the potential of being resolved to the party’s mutual satisfaction and searches for ways to create
value so that both parties may benefit.
The problem-solving negotiators has the following traits:
- Conducting self ethically
- Maximizing settlement for client
- Getting a fair settlement.
- Meeting client’s needs.
- Avoiding litigation
- Maintaining a good personal relationship with the opponent

In this kind of negotiation, the end is usually in developing a relationship based on trust and
cooperation.
The parties are therefore more prepared to make concessions on substantive issues in order to preserve
that relationship
Advantages.
- Sustains relationships/creates long-term relations.
- As a professional negotiator, more people will want to deal with you.
- A deal or compromise will be reached when there’s a deal to be made.
- A conclusion is more likely to be reached sooner.
Disadvantages
- There’s possibility of manipulation by the other party.
- Negotiator may be taken advantage of by the other party.
- In the case of a professional negotiator, a cooperative negotiator may not get a good
name.\
- The party may want to get out of the deal later once they feel they’ve compromised a
lot.
What are principled negotiations?

Negotiation may lead to mediation in the event that the parties to a mediation have reached a
deadlock.

Mediation
Section 2 of the Civil Procedure Act defines mediation as an informal and non-adverserial process
wgere an impartial mediator encourages and facilitates the resolution of a dispute between two or
more parties but does not include attempts made by a judge to settle a dispute within the course of
judicial proceedings related thereto.
It is usually an extension of negotiation where parties who have been unable to resolve a dispute or
conflict use an impartial third party, the mediator, to assist them in reaching a conclusion. The
mediator aids the parties to apply their values to the facts and reach a conclusion. i.e., the disputing
parties rather than the mediator, choose the norms that will influence the outcome of their dispute.
This is the principle of self-determination where the parties affected by a dispute determine the
outcome of the dispute unlike in adjudication processes where a third-party intervenor imposes a
decision.
The mediator simply aids the parties in reaching a consensus by facilitating their communications and
negotiations.
The primary goal of mediation is to help the parties work out a solution that they can live with and
trust.Mediator has no authority to impose a decisipn and therefore nothing will be decided until the
parties agree to it.
Negotiation can be:
(i) Rights Based-Where the parties decision-making is influenced by what they
think would be available to them in court if the case was litigated. There’s
more focus on the immediate dispute rather than the underlying conflict. This
is usually more of positions bargaining and undercuts the inherent values of
mediation.\
(ii) Interest-based mediation-It is usually more therapeutic and closely resembles
the traditional ideal of mediation that emphasizes the value of relationships
and aims to help the disputants understand the underlying needs and interests
of the other party. It focuses more on the underlying conflict that gave rise to
the dispute.
Mediation works best where:
- You have honest people.
- Parties are cooperative.
- Parties are interested in continuing the relationship.
- Parties feel safe.

Advantages of mediation.
1. Expeditious, inexpensive and procedurally simple than adversarial problem solving.
2. Enables parties to define what is satisfactory to them by solving the underlying conflict that
gave rise to the dispute thus maintaining their private relationships.
3. It is a more empowering process because the disputants have more autonomy compared to
adjudicative processes where a third party imposes a decision on them. The disputants control
the outcome of the process and this results in a high degree of compliance with the mediated
agreements. Parties have a greater commitment to abide by a mediated agreement than with a
court judgment.
Disadvantages of mediation
 THE MEDIATION PROCESS
An impartial third party aids the parties towards the resolution of their conflict with the disputing
parties being responsible for determining the outcome of the resolution. The main activity is usually
the information exchange and the bargaining between the parties. These activities may be carried out
in joint sessions, in private meetings known as caucuses or a combination of both.
- The mediation process usually begins in a joint session with opening remarks by the
mediator followed by opening statements from the disputing parties. After discussion
on each party’s view of the situation, and depending on the issues involved, the
mediator may meet privately with the parties in private caucus sessions. NB|| In the
event that there is a high level of hostility between the parties, the mediator may
begin the process by meeting separately with each party before the joint session.
Mediation works best when it is private and confidential because it helps the mediator
to build trust and create a rapport with the parties. It creates a safe space where the
parties can share info about their interests and needs without fear.

(a) The mediator makes opening statements.Introducing everyone,explaining the rules and goals
of the mediationand encouraging cooperation byween the parties.
(b) Disputants’ opening statements. Each party is invited to describe the dispute and its
consequeces,financial or otherwise. The mediator might entertain general ideas about the
resolution. No interruptions.
(c) Joint discussion. Mediator might encourage the parties to respond directly to the opening
ststements. This depends on the receptivity of the parties.
(d) Private Caucuses- The private caucus is a chanve for each party to meet privately with the
mediator.The parties are placed in different rooms and the mediator goes between the two
rooms to discuss the strengths and weaknesses of each position and to exchange offers. The
caucuses comprise the gut of mediarion.
(e) Joint negotiation. After caucuses,the mediator might bring the parties back together to
negotiate directly.He doesn’t bring them together unless a settlement is eached or the time
allocated for the mediaton ends.
(f) Closure. If the parties reach and agreemnent, the mediator puts the main provisions in writing
and adsks each party to sign the written summary of the agreement. If no agreement is
reached, parties may meet later.
A non- binding process in which an impartial third party, mediator, facilitates the negotiation process
between the disputants.
- The mediator has no decision-making power.
- The parties maintain control over the substantive outcome of the mediation.
- The mediator will control the process with the help of the parties and set and enforce
ground rules for the mediation process with the consent of the parties.
- He is to get an overview of the contentions of both parties, agree with the parties that
each party will be given an opportunity to state their case.
- They could also agree that when one party is presenting their case, the other party
should not interrupt.
- The role of the mediator is neither to impose his own solutions nor suggest solutions
but to facilitate the disputants as they suggest the solutions and agree upon
themselves.
 - The disputants communicate with the mediator to tell their story and contentions. The
mediator reassures them that they’ve been heard by restating what each party has told
him and confirming whether those are indeed the facts.
- He re-narrates the story and asks the disputants to suggest the way forward. He then
lays down the rules with their consent.
NB/; The mediator should not descend into the arena but should let the disputants decide how to
conduct the negotiations.
Court Annexed Mediation
Captured under s 59 A-D of the Civil Procedure Act Cap 21.
It is usually a type of mediation that takes place under the supervision of the court. It is used to settle
cases that are brought before court for litigation. It gives the parties an opportunity to settle their
disputes amicably before resorting to litigation.

FACT FINDING
It is a legal process where a neutral third-party reviews documents and examines third parties in order
to determine whether the facts contested in the trial of the case are true or not.
Neutral fact finding is usually done by an impartial person, sometimes an expert of some kind, who is
not a party but is usually selected by the parties. Fact finders are not permitted to decide questions of
law, but rather they only investigate the factual issues in a case and produce a report.

Advantages of fact finding

1. Differences in the parties’ view of critical facts will usually preclude settlement. Fact finding
makes it possible for the parties to agree on the facts therefore making it easier to reach a
consensus.
2. Where an understanding of what happened is not shared by both parties, one party may be
exposed to opportunistic behavior or manipulation by the other, against which they have no
recourse. i.e., information asymmetries. Fact finding ensures a common understanding of
what happened thus balancing the bargaining power of the parties.
3. Developing a common understanding of what happened facilitates empathetic communication
and is an important prerequisite to maintaining the relationship between the parties.
4. Where there was a dispute as to core facts of the dispute which has been cleared through fact
finding, the parties are more likely to accept the outcome compared to when the dispute is not
cleared.

Neutral fact-finding is a process where a neutral third party, selected either by the
disputing parties or by the court, investigates an issue and reports or testifies in
court. The neutral fact-finding process is particularly useful for resolving complex
scientific and factual disputes.

Fact Finding
Fact Finding in Arbitration and Mediation
Politicians are fond of saying that individuals can have their own
beliefs, but cannot have their own facts. Hearing evidence and
issuing findings of fact lie at the centre of much of our work as
special masters and ADR professionals.

At Corodemus & Corodemus, L.L.C., our attorneys and retired

judiciary work to assist parties in the reconstruction of a complex
set of facts. The facts of the case could have occurred over a long
period of time. Neutral fact finding is a unified effort to uncover a
neutral set of facts which parties may use in preparing for
arbitration or trial.

Our ADR professionals and third-party neutrals can assist the courts
and opposing counsel with the following:

 Authentication of facts
 Incontrovertible determinations based on facts
 Verifications based on facts

Neutral fact finding as a part of the arbitration or mediation process

can remove some of the distraction of inconsequential facts and
narrow the issues as to genuine factual disputes. We can also help
resolve problems as to expert qualifications, evidentiary objections
and protective orders.

Early Neutral Evaluation

Early neutral fact finding is an ADR technique that allows our
professionals to assist both parties early in the case, even before
litigation is initiated.

This might involve stipulating as to controlling statutes, facilitated

dialogue between opposing experts, or the reconstruction of
instructional memory in cases where time and complexity may
cause limitless expense in traditional litigation. This type of ADR
can be most helpful in the environmental and/or class actions
areas. Of course, any dispute must be examined to discover the
best method of resolution. Our staff will help explore which
approach and techniques will be best for your case. This technique
works well when combined with fact-finding services, special
discovery master or mediation.

What is Fact-Finding in a Personal Injury Case?

Fact-finding is a type of legal process wherein a neutral, third party interviews witnesses and
reviews documents to determine exactly what happened in the accident that has led to
a personal injury lawsuit. The purpose of fact-finding is to establish which facts are true and
not subject to contest in the trial of the case. Fact-finding occurs during fact-finding hearings.

Fact-finding is a type of alternative dispute resolution (ADR). These are processes which aim
to resolve a legal dispute without a trial. In many cases, a pre-trial settlement may result after
fact-finding reveals what actually occurred in the accident at issue in a personal injury case.

If fact-finding is done by the parties to a lawsuit, it is done through the discovery process and
governed by the rules of discovery. Such processes as interrogatories, depositions,
and production of documents are the methods used in every civil lawsuit to determine
what evidence there is and what it shows about the case.

Neutral fact-finding is done by an impartial person, sometimes an expert of some kind, who
is not a party but is selected by the parties. It is possible that the fact-finder would be selected
by an agency if the agency has a role in the case. Or the fact-finder may be appointed by a
person who has the authority to appoint a fact-finder in order to determine the facts in a
dispute, e.g., someone who works for a court.

The basic advantage of fact-finding is thought to be that if a trustworthy and impartial person
delivers findings of fact, this should carry great weight with the parties. They would be more
likely to settle the case. Their own evaluations of their respective positions in the lawsuit
would be affected favorably by the input of the neutral fact-finder. In other words, they
themselves would view their own positions more realistically, and this would make them
more likely to settle.

Reportedly, fact-finding is a process that originated in Labor disputes, but variations of it

have been applied to a variety of legal disputes in other areas as well, such as personal injury
cases. Fact-finders generally are not permitted to decide questions of law, but rather they only
investigate the factual issues in a case and produce a report of their view of the facts.
In some cases, the fact-finder may be tasked with producing an assessment of a situation or a
specific non-binding recommendation as to how a dispute might be resolved. In cases where
such recommendations are not accepted, the evidence (or facts) should then have been
collected and organized in a fashion that will facilitate further negotiations or be available for
use in later adversarial proceedings, e.g., a trial.

The key point is that fact-finding is never binding. It is designed to be advisory only in the
hopes that it can offer the parties a pathway to resolving their dispute voluntarily through
mutual agreement.

However, in any civil case, it is possible for the parties to agree that certain facts do not need
to be proven at trial and to reduce the facts at issue to one or two only. They do this in the
interest of making the trial proceed more quickly and at a lower cost. Fact-finding could
facilitate the process of the parties agreeing that certain facts do not have to be contested at
trial.

Fact-finding is similar to the process sometimes called “early neutral evaluation.” Again,
having a third party whom the parties view as neutral or impartial can give the parties access
to an objective evaluation of the strengths and weaknesses of their respective cases. With
early neutral evaluation, the parties can usually make informal presentations to the evaluator
to highlight their respective cases or positions.

This process is used in a number of courts across the country, including federal district
courts. Early neutral evaluation is appropriate when the dispute involves technical or factual
issues that lend themselves to evaluation by experts who would provide expert testimony at
trial.

It is also used when the parties disagree significantly about the value, strength or weakness of
their positions in cases. It is helpful especially if a person in a position to make decisions
about whether or not to settle a case needs to be better informed about the real strengths and
weaknesses of their position. Finally, it is used when the parties are seeking an alternative to
the time and expense of engaging in discovery and trial.

Contents

1. Are the Results of Fact-Finding Binding During the Lawsuit?

2. Who Conducts Fact-Finding?

3. Do I Need a Lawyer for Help with Fact-Finding in a Personal Injury Case?

Are the Results of Fact-Finding Binding During the Lawsuit?

Fact-finding is similar to arbitration, except that the conclusions reached in fact-

finding are not legally binding. A ruling in an arbitration can be binding on the parties,
and the parties may well have given up their right to appeal the arbitration decision.
With fact-finding, the parties can usually decide what legal consequences result from
the establishment of the facts. If the parties cannot reach a settlement after fact-
finding, the parties usually proceed to trial. As explained above, the results of fact-
finding may be incorporated into the trial.

Results reached in fact-finding may be immune from challenge during the ensuing
trial. But that would be the case only if the parties agree to it. Generally, the parties
have the option of choosing whether or not the facts are to be binding during trial. If
the facts are binding, then the trial would focus only on the facts that still have to be
decided, if there are any remaining. In addition, the parties would argue issues of
law, rather than issues of fact.

Who Conducts Fact-Finding?

Fact-finding is usually conducted by a person or panel of people who can be viewed

as neutral by the parties. The fact-finder should be a person who is not directly
interested in the outcome of the case. It might also be preferable to have someone
who understands evidence and has experience in assessing the weight that should
be given to items of evidence and whether or not it is credible.

This could be:

 A judge or retired judge;

 A hearing officer or hearing examiner;
 A neutral third-party mediator or representative appointed by the parties as in other
alternative dispute resolution processes.

Each state has its own rules regarding the procedural and legal guidelines for fact-
finding. In some states, it might be mandatory in some situations. In others, it may
not be used at all or only rarely.

Civil trial courts in California have embraced ADR. Some courts even require the
parties to a civil case to participate in some form of ADR, such
as mediation or arbitration. California recognizes a process it calls “case evaluation,”
which is somewhat similar to fact-finding. In case evaluation, each party makes a
presentation of its case to a neutral evaluator. The neutral evaluator then gives the
parties its opinion as to the strengths and weaknesses of each party’s evidence and
arguments.

The hope is that this would lead to a settlement, or at the least help the parties come
to a voluntary resolution of the dispute later. Case evaluation, like mediation, can
take place early in the dispute and save the parties time and money. The case
evaluation process is most valuable if the parties have an unrealistic view of the
dispute and need outside assistance in valuing their case. Or in cases that depend
largely on technical or scientific questions and expert opinions, case evaluation can
be helpful. It can be used in combination with mediation or arbitration.