What Parties Might Be Giving Up and Gaining When Deciding Not to Litigate: A Comparison of Litigation, Arbitration and Mediation

By Carper, Donald L.; LaRocco, John B. | Dispute Resolution Journal, May-July 2008 | Go to article overview

What Parties Might Be Giving Up and Gaining When Deciding Not to Litigate: A Comparison of Litigation, Arbitration and Mediation


Carper, Donald L., LaRocco, John B., Dispute Resolution Journal


Deciding whether to litigate, arbitrate, or mediate requires an understanding of three dispute resolution processes. The authors begin with the major characteristics of litigation, and then discuss whether these characteristics are present in arbitration and mediation, and if not, how these processes differ.

Why one might choose to use an alternative dispute resolution (ADR) process to resolve a legal problem is an interesting question, but it is not the focus of this article. Instead, it focuses on the fundamental attributes of litigation and explores whether these attributes are present in private arbitration and mediation. The purpose is to help people make an informed decision about the process they wish to use to resolve their dispute. This comparison also could help designers of ADR systems identify and preserve attributes desired by parties and jettison those that are not.

We grew up when litigation was the main avenue of dispute resolution. Arbitration was not then accepted by the courts. The attitude of the time toward righting wrongs was to litigate. The phrase "sue the bastard" was in common use.1

The acceptance of the courthouse as the place to resolve disputes has improved the lot of millions of persons worldwide. However, as important a civilizing influence as this was, the courtroom is not, and should not be, the only means of dispute resolution in a civilized society. Abraham Lincoln predicted the importance of litigation alternatives when he wrote, "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser-in fees, expenses, and waste of time."2 He also suggested that lawyers should help the parties settle their disputes out of court and not worry that their income will suffer.3 He recognized that even if the rule of law is the foundation of a civil society, litigation should be used only as a last resort.

In recent years we all have become more familiar with ADR processes. Even the courts have adopted their own ADR programs to better control their dockets and close cases faster. Thus, we now see ADR processes playing a role in maintaining social stability and order.

Yet the main reason for the growth in the use of ADR is not that these processes are inherently superior to litigation. Rather, it is dissatisfaction with the litigation model. Here are some oftenquoted reasons for using ADR4:

* to lower court caseloads and expenses;

* to reduce the parties' expenses and the time it takes to resolve disputes;

* to encourage speedy settlements;

* to improve the public's satisfaction with the justice system;

* to encourage resolutions that are suited to the parties' needs;

* to increase voluntary compliance with resolutions;

* to restore the influence of neighborhood and community values and the cohesiveness of communities;

* to provide accessible forums to people with disputes;

* to teach the public to try more effective processes for settling disputes;

* to permit parties to select the person(s) who will judge the dispute;

* to bring expertise to dispute resolutions; and

* to overcome flaws in jury decision-making.

It is no coincidence that the first three reasons involve the perception that litigation costs too much and takes too much time. The other reasons are clearly important, but it is doubtful that ADR would have achieved its current popularity without the perceived deficiencies of the courts. We suspect that if court reforms could reduce the time and expense of discovery as well as the time it takes to get to trial, the impact on ADR would be dramatic. But effective pre-trial reforms of the litigation process are not being made.

Essential Attributes of the American Judicial System

American court systems have the following features:

1. They are created and funded by government and are available in every U.

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