ADR And The New Alternative
Anyone who works in the dispute resolution field knows that ADR has always stood for "alternative dispute resolution." It is also common knowlege that the usual alternatives are considered to be arbitration, mediation, private-judging, and neutral evaluation. So "ADR" is commonly used to refer to any or all of those forms of dispute resolution. But, has this usage become misleading?
ADR is thought of as the alternative to going to court. Yet, a good case can be made that one or more of these so-called "alternatives," especially mediation, have become the commonly accepted way of resolving legal disputes and that going to court is now the true alternative.
A good deal has been written about the "vanishing trial."
Lawyers have become used to the fact that the great majority of cases are settled and that very few go to trial. Soon we will be hearing about the "vanishing arbitration" as parties become more aware that arbitration can have many, if not all, of the downsides of going to court, including high costs, waste of time and energy, stress, and uncertain results. In short, high costs and high anxiety.
Judges and arbitrators can deal with some of the drawbacks of both litigation and arbitration by effective management of their cases. They can manage the pre-trial or pre-hearing process so that it does not become unduly burdened with expensive and unnecessary depositions and motions. But they will never be able to remove the major downside of both processes, which is the inability to predict what judges, juries, and arbitrators will decide.
Inevitably, negotiation and mediation are becoming the most commonly accepted vehicles for the resolution of lawsuits in the United States and perhaps around the world. Welcome to the new world of dispute resolution and to the new alternatives!
Michael Carbone is a full time neutral whose practice focuses primarily on construction claims and defects, real estate, business disputes and complex litigation. He has mediated and arbitrated for approximately ten years. He has served as a court-appointed referee in real estate and business matters.
He is a past president of The Mediation Society, a member of the State Bar Standing Committee on ADR, the ADR Committee of the State Bar Business Law Section, and the Board of Directors of the California Dispute Resolution Council.
He practiced law for more than thirty-five years. His practice emphasized commercial real estate and general business matters, including litigation of construction, real property, land use, and business cases.
Additional articles by Michael P. Carbone