Two Views of Alternative Dispute Resolution

As a follow up to Boarder’s post on Mediation, I wanted to lay out two sides of the ever-growing movement of settling cases outside the courtroom. As a little background, well over 90 percent of civil cases settle before going to trial, in some jurisdictions only 2 percent of cases actually go to trial. The vast majority of commercial contracts we sign, such as signing up for a credit card or clicking the “I Agree” button on a website, contain mandatory arbitration or mediation clauses; and many courts require mediation for claims under a certain dollar amount, say $50,000.

On the one hand, mediation is fast and cheap, at least compared to a traditional trial. Furthermore, alternative dispute resolution is said to do away with the “win-lose” format of a trial, where one party either gets everything or nothing; replacing it with “win-win” outcomes, where the parties can reach a mutually satisfactory accord. As Boarder pointed out, the parties are able to sit down face-to-face in alternative dispute resolution while avoiding the adversarial structure of the courtroom.

On the other hand, the law is not static and develops through the deciding of unique and novel cases. With such a vast majority of cases being siphoned off from the courts, many important issues may never see the light of day. Most mediation and arbitration sessions reach a conclusion without issuing a public opinion – many parties prefer the anonymity of the proceedings. Therefore, there is no guarantee that the law is being followed, nor is there any development in the law due to the resolutions reached. So, while ADR may please individual parties (and there is no guarantee of this), it may also act against the public interest.

The second argument above may seem theoretical; there are more practical arguments to be made against the use of ADR as well (and I hope to advance some of them in future posts). ADR can also be a very effective tool – like any complicated issue, the field is not nearly black and white. Because ADR is strong in some areas where the courts are weak, it necessarily sacrifices some of the strengths of the courts as well. Both are important aspects of conflict resolution, and neither is perfect.

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