Producing more satisfying results

After litigating a case through trial, even the “prevailing” party may feel it has lost.  The time and expense involved in litigating a case through trial may be substantial.  It is highly unlikely that either side will be satisfied with the result and any relationship that may have existed between the parties is likely to have been severely strained.  In contrast, ADR may:

• Help settle all or part of the dispute much sooner than trial
• Permit a mutually acceptable solution that a court would not have the power to order
• Save time and money
• Preserve ongoing business or personal relationships
• Increase satisfaction and, thereby, result in a greater likelihood of a lasting resolution

Allowing more flexibility, control and participation

In formal litigation, a court is limited in the procedures it may employ and the remedies it may award the litigants.  Moreover, submitting a case to a judge or jury can be extremely risky.  In contrast, ADR is more flexible and allows parties to participate more fully in a variety of ways.  ADR affords parties more control by providing opportunities to:

• Tailor the procedures used to seek a resolution
• Broaden the interests taken into consideration
• Fashion a business-driven or other creative solution that may not be available in court
• Protect confidentiality
• Eliminate the risks of litigation

Enabling a better understanding of the case

Because of the adversarial nature of litigation, parties sometimes cease communicating directly and, consequently, information that would assist the parties in properly evaluating their respective cases is not made available.  In contrast, ADR may:

• Provide an opportunity for clients to communicate their views directly and informally
• Assist parties in identifying genuine disputed issues
• Enhance the parties’ understanding of the relevant law and the strengths and weakness of their respective positions
• Assist the parties in exchanging key information

Improving case management

Litigators sometimes find it difficult, in the initial stages of litigation, to devise a cost-effective case management plan, reach stipulations or narrow the issues in dispute.  An ADR neutral can help parties:

• Streamline discovery and motions
• Narrow the issues in dispute and identify areas of agreement
• Reach factual and legal stipulations

Overcoming obstacles to settlement

The adversarial nature of litigation oftentimes makes it difficult for counsel and parties to negotiate a settlement effectively.  An ADR neutral can help overcome barriers to settlement by selectively using information from each party to:

• Allow a party to explore settlement potential without indicating any litigation weakness
• Help parties engage in productive dialogue
• Help each party understand the other party’s views and interests
• Communicate views or proposals in more palatable terms
• Gauge the receptiveness of proposals
• Help parties realistically assess their alternatives to settlement
• Help parties generate creative solutions

Reducing hostility

Litigation has a tendency to increase the level of hostility between the parties, which can impede communication and decrease the likelihood of settlement.  An ADR neutral can:

• Improve the quality and tone of communication between parties
• Decrease hostility between clients and counsel
• Reduce the risk that parties will abandon settlement efforts

When ADR may not be useful:

Although most cases can benefit in some way from ADR, there are limited circumstances where a case might be better handled without ADR.  These include suits in which:

• A party seeks to establish precedent
• A dispositive motion requiring little preparation will likely succeed
• A party needs the protections of formal litigation
• A party prefers that a judge preside over all processes