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 P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields. His exceptional combination of transactional and litigation experience enables him to handle complex litigation and other challenging cases.
Michael resolves business and commercial cases, real estate disputes, employment claims, construction claims and defect cases, estate and trust matters, insurance issues, legal malpractice, corporate and partnership disputes, and personal injury cases. In his capacity as a court-appointed referee he has undertaken a wide variety of responsibilities, including sales and appraisals of real property, and the adjudication of trust accounting and administration matters.
He is a member of numerous dispute resolution panels, including the National Panel of Arbitrators of the American Arbitration Association. He is also listed on the mediation and discovery facilitation panels of several Superior Courts.
He is a founder and past president of The Mediation Society, and a member of many other professional organizations, including the Academy of Court-Appointed Masters, the Dispute Resolution Section of the American Bar Association, and the Association of Business Trial Lawyers.
Michael is a frequent author and speaker on alternative dispute resolution issues. He publishes a monthly newsletter entitled "Resolving It" which provides timely advice on strategies for successful mediation and discusses current issues, such as reforming the commercial arbitration process and mediating e-discovery.