When litigators think of Alternative Dispute Resolution (ADR), they often picture a single, last-minute mediation held “on the courthouse steps.” While settlement discussions often intensify as trial approaches, this narrow view fails to capture the immense power and flexibility of ADR as a continuous, procedural tool.
ADR is not a single event; it is an umbrella term for a group of civil litigation avoidance and resolution methods, ranging from informal negotiation to complex hybrid procedures. For the litigating attorney, mastering this toolkit is essential to controlling costs, managing client expectations, and achieving the best possible outcome.
ADR as Process: Separating Substance from Procedure
A critical misunderstanding among some trial lawyers is that engaging in ADR somehow waives or determines substantive legal rights. This is incorrect. ADR is fundamentally a process, a set of evolving procedural tools designed to assist in resolving a substantive dispute.
When disputants choose mediation or negotiation, they are merely electing a method of concluding (or attempting to conclude) the case. They have not agreed on which case law or statute applies. Who ultimately prevails is irrelevant to the neutral party managing the process. An ADR method, by itself, does not dictate the outcome; it simply offers a structured way to determine if an agreed-upon outcome is possible. The litigator’s job remains the same: to advocate for the client’s interests, but within a more flexible, results-oriented forum.
The Full Spectrum of ADR: From Negotiation to Complex Hybrids
At its core, the substance of ADR comprises the alternatives to trial: negotiation, mediation, and arbitration. Each serves a distinct purpose, and your strategic choice depends on the client’s need for control, finality, and cost containment.
- Negotiation: The simplest form, often a series of direct communications, which is ongoing throughout every case.
- Mediation: A facilitated negotiation managed by a neutral third party (like myself) who assists the parties in reaching a voluntary settlement. This offers maximum control over the outcome.
- Arbitration: A process closer to a mini-trial, where a neutral third party or panel hears evidence and renders a binding or non-binding decision. This offers finality, often faster than trial, but with less party control.
Sophisticated practitioners understand how to combine and adapt these methods, creating complex, custom-designed resolution processes for multi-party or specialized commercial disputes.
Actionable Takeaway: Deploying ADR Across the Case Lifecycle
Think of ADR not as a final act, but as a recurring feature in your case strategy:
- Initial Assessment: Advise the client on an early negotiation/mediation window, calculating the savings from avoiding initial discovery costs.
- Discovery Checkpoint: Use a round of mediation after key depositions to test the other side’s risk tolerance based on revealed evidence.
- Post-Judgment and Appeal: Remember that ADR can even be appropriate following a trial or judgment. Courts have established dispute resolution methods for use while a decision is on appeal, offering one last chance to manage risk and expense before an appellate decision.
Mastering the ADR process means mastering a set of tools that allow you to deliver what your clients truly value: an efficient, economically sound, and definitive resolution.
About the Author: Ken Strongman is a private commercial mediator/arbitrator of complex, high risk litigated cases since 2004. Disputes addressed include business, securities, construction defects, real estate, intellectual property, employment, environment, energy, and trusts & estates. He is also a Mediator and Arbitrator for FINRA, past president of The Mediation Society. and instructor at UC Law San Francisco.
Leave a Reply