The longer you are in business — or a lawyer doing commercial litigation — the more you will come to appreciate alternative dispute resolution (ADR). By “ADR,” we mean mediation and arbitration–both of which can be either binding or non-binding.
There are many reasons for resolving your disputes outside of the court system, but let’s just touch on a couple of key benefits.
Some people try to “shame” their opponents into submission with an outrageous complaint filed at the courthouse.
After all, once filed, the complaint becomes part of the public record. That alone can be quite damaging to a defendant, whether or not there is any truth to the allegations.
It’s an ignoble approach, and usually not very effective but it is, nonetheless, rather common. If you are one of these people who use such tactics, then you can skip the rest of this page. ADR is not for you.
On the other hand, for legitimate business people who don’t need to have their hard-earned reputations tarnished by lawsuits–whether frivolous or meritorious–ADR is a great solution. With mediation and arbitration, the proceedings remain completely out of the public record. There are no “filings,” and nobody can get a hold of the pleadings by simply going the Clerk of Court’s website.
There simply is no benefit to having your laundry out in the open for the world to see. Make ADR clauses a part of all your contracts, and take care of your disputes privately.
The US courts are among the most efficient on the planet. Even so, they are often not funded well enough to handle lawsuits as quickly as we would like.
And, let’s face it. The rules of civil procedure are such that even a mediocre attorney can drag out a lawsuit far beyond what it should be.
If you are the defendant–or just on the wrong side of the law–dilatory tactics can be advantageous. After all, some battles are simply won be attrition.
But, if you have better things to do with your time, money and energy than grind out a grueling legal battle, then you should really consider ADR.
A mediator or arbitrator will have very few cases on his or her plate — probably just yours. So, you can avoid delays caused by a judge’s busy calendar. In fact, you can avoid a lot of motion practice altogether.
Disputes are all but inevitable. As a society, we have to have a way of resolving them without bloodshed. ADR is the best solution we’ve come up with so far.