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Reasons why Alternative Dispute Resolution is still Secondary to Litigation
Alternate Dispute Resolution has gained speed and popularity as a reaction to the struggling and time-consuming process of litigation which has left parties unsatisfied and with a burning hole in their pockets due to the expensive process. Alternate Dispute Resolution can be of many kinds – Arbitration, Conciliation, Mediation and Negotiation, with Arbitration and Mediation leading the pack in popularity and general awareness. Though the processes are named differently and have slight variations in procedure, the underlying principle is the same and that is to limit judicial intervention and bring about speedy resolution by allowing a neutral third party to facilitate conversation and ensure amicable settlement and preservation of the relationship between parties[1]. While Conciliation, Mediation and Negotiation involve mere facilitation of conversation and discussion rather than adjudication, they require far fewer procedural rules as compared to arbitration. Arbitration is ahead of the game when it comes to institutionalization and statutory recognition with international conventions and national legislations around the world evolving to step up to the rise in commercial transactions and the need for arbitration.
Alternate Dispute Resolution has now become concerned with procedure much like litigation and this mutation can be attributed to the rise in domestic as well as international commercial arbitration. The system which was meant to be an alternative to litigation has begun to mirror the exact qualities of the very judicial route that it aimed to deviate from by bearing more importance to motions, briefs, discover, depositions, judges, lawyers, expert witnesses, publicity and damage awards beyond contractual limits and beyond reason[2]. The more complicated process can be credited to multiple reasons such as emphasizing the importance of “winning”, viewing Alternate Dispute Resolution as a peripheral to litigation, lack of commitment to the process, unreasonable awards, improper court-referred arbitration and discouragement from lawyers[3].
Alternate Dispute Resolution provides a means for parties to interact with each other and come to a settlement, but parties often choose to involve their lawyers as they have a better understanding of the legal system and are trained at negotiations. The problem with this, however, is that lawyers are used to battling disputes out in the courtroom and they often bring this attitude to arbitration or mediation proceedings and this leads to animosity and a need to win rather than to compromise and figure out the best strategy for both parties[4]. Lawyers also contribute to the problem in another way by being hesitant to encourage their clients to pursue ADR as it considerably reduces the fees that they are paid since they will not be expected to participate in a long-drawn struggle with multiple hearings and client meetings for years.
Alternate Dispute Resolution also still remains an alternative to litigation as it is viewed as the path chosen only when litigation seems like the wrong option and an option that cannot be chosen for reasons of time, expense or inability to find a good lawyer. Furthermore, stressing on the point made earlier stating that Alternate Dispute Resolution, especially arbitration, has become a process akin to litigation, the process allows to cut down on attorney time and expenses arbitration permitting parties to have a conversation and thereby eliminates briefs, discovery and the never-ending reliance on testimonies and counter-testimonies[5]. However, lawyers make repetitious presentations of facts, present more evidence and file motions just like they would do before a judge and this fuels the clients into behaving as they would in a courtroom too and this prolongs the arbitration process into a long-drawn struggle much like litigation. Even after the arbitration process concludes and the arbitrator pronounces an award but often these awards end up going beyond the bounds of reason, contracts and civil law even. Parties can voluntarily opt for alternate methods of dispute resolution, but it is not the only way for disputes to be referred to arbitration, mediation or conciliation because as a way to promote and encourage Alternate Dispute Resolution, the judiciary was given the power to refer matters to other mechanisms of dispute resolution. Though this was well-intentioned it has led to courts referring matters to Alternate Dispute Resolution after litigation has already begun and this often steers parties and lawyers to carry forward the animosity and hostility, they harbored during the litigation battle, to the dispute resolution process[6].
These reasons have ensured that Alternate Dispute Resolution is still an “alternate” choice to litigation because people not only lack awareness on the process, but they also replicate the litigation process during peaceful methods of dispute resolution because it’s the only thing that they are familiar with. The only way to change this is by encouraging Alternate Dispute Resolution as the first option of resolution and slowly but surely this change is on its way and commercial arbitration might be the key to making it a primary method of dispute resolution.
[1] Anubhav Pandey, All you need to know about Alternative Dispute Resolution (ADR), iPleaders, (May 9, 2017, 11:37 AM), https://blog.ipleaders.in/adr-alternative-dispute-resolution/.
[2] Mark Albright, The Advantages and Disadvantages of ADR, AlbrightStoddard, (Sep. 21, 2012, 2:54 PM), https://albrightstoddard.com/advantages-disadvantages-adr/.
[3] Editor, Explain the Advantages and Disadvantages of Alternative Dispute Resolution, LawyersnJurists, (Apr. 9, 2020, 8:59 PM), https://www.lawyersnjurists.com/article/advantages-disadvantages-alternative-dispute-resolution/.
[4] Advice Services Alliance, Why use ADR? Pros & Cons, ASAUK, (Apr. 30, 2020, 8:37 PM), https://asauk.org.uk/wp-content/uploads/2013/08/Why-use-ADR.pdf.
[5] Todd Carver, Alternative Dispute Resolution: Why It Doesn’t Work and Why It Does, Harvard Business Review, (Jun. 4, 1994, 9:15 PM), https://hbr.org/1994/05/alternative-dispute-resolution-why-it-doesnt-work-and-why-it-does.
[6] Steven Sack, Using Alternative Dispute Resolution, EdwardLoweFoundation, (Mar. 13, 2001, 3:14 PM), https://edwardlowe.org/using-alternative-dispute-resolution-2/.
- Alternate Dispute Resolution
- Secondary to Litigation
- Disadvantages
