Three decades ago, then United States Supreme Court Chief Justice Warren Burger issued a powerful dictum that every litigator should internalize: “People with problems, like people with pains, want relief, and they want it as quickly and inexpensively as possible.”
As a seasoned commercial mediator, I see the truth of this statement daily. Your clients, whether a Fortune 500 company or a closely held business, aren’t paying for the spectacle of a fine courtroom. They are paying for a solution. They want to eliminate a business distraction, secure a financial outcome, and move on. For the litigating attorney, this means the question isn’t whether to use Alternative Dispute Resolution (ADR), but when and how to deploy it as the most direct path to the client’s desired “relief.”
The Cost of Confrontation vs. The Value of Closure
We all know there are cases that must be tried—complex issues of novel law that require adjudication to establish precedent and refine our legal system. However, the vast majority of commercial disputes are simply not in that category.
The high cost of litigation isn’t just measured in billable hours; it’s the opportunity cost, the emotional toll, and the business disruption your client endures over years. ADR, in contrast, offers an expedited, economic, and less confrontational path to a resolution. It allows for a creative, business-focused settlement that a judge or jury, bound by law, simply cannot deliver. When you champion ADR, you are positioning yourself as a sophisticated strategist who prioritizes the client’s comprehensive well-being over a gladiatorial, zero-sum battle.
ADR as a Strategic Complement, Not a Surrender
Some attorneys mistakenly view suggesting mediation as an admission of weakness or a failure of their trial advocacy. This couldn’t be further from the truth. In modern commercial practice, ADR is a strategic, integral part of the litigation lifecycle.
It should precede, help to deter, or, at the very least, complement civil litigation. By engaging in a series of negotiations or mediated sessions early, you gain critical insight into the opposing party’s true risk appetite, their counsel’s strategy, and the nuances of the case that depositions alone won’t reveal. Furthermore, involving the disputing parties more directly in the problem-solving process—a key component of ADR—increases the likelihood of a settlement that sticks.
Actionable Takeaway: The “Relief” Checklist
To ensure you are strategically deploying ADR for maximum client relief:
- Audit Your File: Identify any novel legal issue that requires appellate review. If one isn’t present, the path to ADR should be your default.
- Frame the Value: Present mediation to your client not as a cost, but as an investment in closure. Calculate the comparative savings in time and future legal fees.
- Negotiate the Process: Be proactive in suggesting the right type of ADR (mediation, arbitration, or a hybrid). Don’t just wait for the court’s referral.
The most effective litigators know that while a trial is sometimes necessary, a negotiated resolution is almost always the quickest way to provide your client the “relief” they truly seek.
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.
The Posting is from my draft book on ADR.
#ADR #mediators #mediation #conflict #lawsuit #construction #legal #Securities #alternativedisputeresolution #negociation #dispute #finra #themediationsociety
© 2025-26 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.