Alternative Dispute Resolution
Mediation involves neutral third party facilitating settlement negotiations. Mediators help parties communicate, identify interests beyond stated positions, and explore settlement options. Unlike arbitrators, mediators don't impose decisions. They facilitate agreement between parties. Mediation works well when parties want settlement but need help bridging gaps. It works poorly when parties have fundamentally incompatible positions or when one side uses mediation for delay. Mediation's informality and flexibility are strengths when parties negotiate in good faith. They become weaknesses when parties abuse the process.
Conciliation resembles mediation but conciliators take more active role in proposing settlement terms. Conciliators assess cases and suggest solutions rather than simply facilitating party negotiations. Some disputes benefit from this active approach—parties cannot find settlement on their own but might accept neutral third party suggestions. Other disputes need pure facilitation rather than proposed solutions. The choice between mediation and conciliation depends on whether parties need help communicating or need someone to propose middle ground they're unwilling to suggest themselves.
Court-referred ADR occurs when courts direct parties to attempt settlement before trial. Courts increasingly refer disputes to mediation or conciliation, requiring parties to attempt settlement. Court-referred ADR has advantages—neutral third party, court encouragement for settlement, and confidential discussions. But it also has limitations—parties might attend just to satisfy court without genuine willingness to compromise, timeline pressure can force inadequate settlements, and mediators cannot force settlement on unwilling parties. Court-referred ADR works best when parties have realistic settlement possibilities. It wastes time when fundamental barriers to settlement exist.
Pre-litigation ADR attempts settlement before filing suit. Engaging in settlement discussions before litigation offers opportunities to resolve disputes at lower cost with less relationship damage. Pre-litigation settlement works when parties have genuine willingness to compromise and realistic assessment of alternatives. It fails when parties are entrenched in positions or when one side needs litigation pressure to negotiate seriously. Knowing when to attempt pre-litigation settlement versus when to proceed directly to litigation requires understanding party motivations and whether ADR has realistic success probability.
ADR clauses in contracts make ADR mandatory before litigation. Contracts can require parties to attempt mediation or conciliation before filing suit. This gives ADR opportunity to resolve disputes at lower cost. But mandatory ADR clauses can also delay relief when settlement is unlikely and parties simply go through ADR motions to satisfy contractual requirements. ADR clauses should be drafted thoughtfully—specifying ADR method, timeline, and consequences of non-participation. Generic ADR clauses that don't specify procedures often create more problems than they solve.
ADR's limitations must be understood alongside its advantages. ADR works well for certain dispute types—commercial disagreements between sophisticated parties, family disputes requiring ongoing relationships, employment matters where continued relationships are possible. ADR works poorly for others—disputes requiring legal precedent, cases involving power imbalances, situations where one party negotiates in bad faith. Choosing ADR should be strategic decision based on dispute characteristics and party goals. ADR is tool with specific applications. It's not universally superior to litigation despite its theoretical advantages.
