Angered by the red tape of the public courts, people entering into contractual agreements in the United States began searching for ways to by-pass the courts and resolve any disputes between them more quickly and more cheaply. Before long, specialist dispute-resolution services arose to service this need. About 60,000 cases a year in the US are now handled through alternative dispute resolution – ADR – including industrial, commercial, environmental, and even international disagreements.
Most private ADR services follow a fairly simple procedure. First, the parties contact each other and agree to work through ADR rather than the courts to resolve their disagreement. Together with the ADR service they choose the kind of process they want, an objective neutral intermediary, and a timetable. They sign a confidentiality agreement to ensure that the maximum amount of information is divulged to the mediator, and agree to share costs and accept the outcome.
The existence of quicker and lower-cost ADR options has caused the public courts in the US to adopt some of the same approaches. Thus courts may mandate the use of out-of-court arbitration before agreeing to schedule a trial date; or they may set up a mock jury to hear the arguments informally, in a non-binding and private forum, in the hope of reaching a decision without the need for a trial.
Using ADR does not preclude the losing parties from going to the public courts if they still feel that they have not reached a just settlement, though it may colour the opinion of the courts. In some jurisdictions, ADR is treated as the first, lower court, so that any continuing dispute about the decision can be taken straight to the appeal courts – reducing duplication and cost all round.
Also in the UK, the recent Woolf report on the legal profession proposed that British lawyers should point out to clients where ADR might serve them better than the courts, and judges now have power to stay court proceedings where ADR is in progress. Meanwhile, government departments are testing or encouraging ADR for procurement, planning, employment, and other disputes. The UK’s Housing Ombudsman, for example, uses the Centre for Dispute Resolution as an independent mediation service.
The benefits of ADR to people in a dispute are clear. Because they can decide their own rules of evidence, and because they can scrap the need for juries and for serried ranks of lawyers, the whole thing is very much cheaper – and less stressful.