Alternative Dispute Resolution Can Provide

Alternative dispute resolution can provide important advantages over taking legal action, but only under specific conditions. While the advantages of dispute resolution are often touted, a careful look reveals that these advantages are not universal and automatic. Advantages like saving time and money, and improving the satisfaction of litigants, depend upon specific conditions like choosing the correct method of resolution for a specific scenario. As such, dispute resolution should be undertaken only after early screening of parties involved, eliminating unnecessary forms of resolution, and a careful section of the method of dispute resolution.

Overview of Alternative Dispute Resolution

Alternative dispute resolution describes the settling of disputes outside of a traditional legal arena (Legal Information Institute). Alternative dispute resolution can be used in almost any type of situation. This can include family, neighborhood, housing, and environmental disputes. Dispute resolution can be used in a number of business situations, including personal injury, employment, and consumer disputes (Center for Analysis of Alternative Dispute Resolution Systems). Alternative dispute resolution is also sometimes called dispute resolution or appropriate dispute resolution (Center for Analysis of Alternative Dispute Resolution Systems).

Alternative dispute resolution is actually a catch-all term that refers to a number of different processes used to resolve disputes. In reality, there are a number of different types of dispute resolution processes. These include arbitration, early neutral evaluation, mediation, a mini-trial, negotiation, neutral fact-finding, ombuds, private judging, settlement conferences, a summary jury trial (Center for Analysis of Alternative Dispute Resolution Systems), and conciliation (Legal Information Institute). Arbitration and mediation are the most common forms of disputer resolution (Legal Information Institute).

Reported Advantages of Alternative Dispute Resolution

There are a number of advantages that are commonly attributed to using dispute resolution rather than having a dispute decided in the legal system. Dispute resolution is often seen as cheaper than traditional legal processes. Attorneys are often not needed in dispute resolution, thus reducing legal costs significantly (Center for Analysis of Alternative Dispute Resolution Systems).

In addition, dispute resolution is often seen as a means of saving time for the parties involved. In the federal courts, dispute resolution is often thought to reduce the demands on judges' time, by reducing the number of trials. This is particularly important as criminal caseloads have increased in recent years. Dispute resolution can theoretically result in quicker disposition of civil cases, reducing time demands on all parties involved (Stienstra and Willging, 1995).

Dispute resolution is also seen as a more flexible solution than legal action in many cases (Center for Analysis of Alternative Dispute Resolution Systems). For example, arbitration has been used in disputes as varied as labor, securities regulation, construction, and other business areas, while mediation has been used successfully in a variety of disputes, ranging from Federal government negotiations with Native American tribes to juvenile felonies (Legal Information Institute).

Parties in a dispute resolution scenario also have the advantage of having greater participation in the dispute. This extends to increased participation in both controlling the outcome, and in coming up with solutions to the problem (Center for Analysis of Alternative Dispute Resolution Systems).

In addition, dispute resolution allows parties the satisfaction of making their case to a neutral party. Stienstra and Willging (1995) note that dispute resolution "provides substantial benefits to litigants by satisfying their need to tell their story to a neutral" (p. 10).

In many cases, participants in dispute resolution retain the right to file a lawsuit at a later date. In these cases, dispute resolution offers the advantage of potentially settling the dispute without legal action, but participants can choose legal action at a later date, if necessary. Importantly, binding arbitration prevents court action at a later date (Center for Analysis of Alternative Dispute Resolution Systems).

Other often-cited advantages of alternative dispute resolution include speed, confidentiality and lack of prejudice. Dispute resolution is not focused on determining guilt or innocence, thus allowing participants to speak openly and without worry of reprisals (Canadian Human Rights Commission, 2004). Further, because dispute resolution can occur quickly after the dispute begins, discussion can begin before "positions harden and discussion becomes more difficult" (Canadian Human Rights Commission, 2004).

While these advantages are often given as a reason for using alternative dispute resolution instead of legal action, it is important to consider under what conditions dispute resolution is truly advantageous to legal action. In particular, Jennifer Shack (2003) notes that mediation can save time and money and improve the satisfaction of those using the court system, but only under certain conditions.

Shack (2003) notes that the type of mediation program used is important in seeing advantages over legal actions. She notes that while there has been a "tendency has been to equate one mediation program with another and to assume the effectiveness of them all" (p. 5), there are important differences in the effectiveness of different dispute resolution programs.

One advantage often noted for dispute resolution is that it provides an alternative to trial, thus saving both money and time. However, Stienstra and Willging (1995) note that dispute resolution is not used as an alternative to trial in many cases, at least in the federal court system. They note that "while ADR (alternative dispute resolution) methods are often thought of as alternatives to trial, the very small percentage of cases that are tried indicates that ADR procedures serve primarily as alternatives to traditional forms of pretrial dispute resolution and not as alternatives to trial" (p. 3).

Further, dispute resolution may not necessarily reduce time demands and costs, as compared to traditional legal actions. Stienstra and Willging (1995) note that "research findings are currently insufficient on the cost and time consequences of ADR (alternative dispute resolution).

While the neutrality of dispute resolution is often seen as an advantage, Stienstra and Willging (1995) note that in some cases this neutrality is called into question. Specifically, they argue that litigants may worry that judges cannot remain neutral, thus making litigants "reluctant to participate fully" (Stienstra and Willging, 1995, p. 12).

Similarly, the perceived fairness of mediation, often cited as a major advantage for dispute resolution over legal action, may be in question. Shack (2003) notes that the seventeen studies she examined did not agree if mediation "programs increased satisfaction and perception of fairness for parties who participated in mediation as compared to those who did not" (p. 2). However, she found that participant satisfaction did increase in cases of successful mediation (Shack, 2003).