Alternative Dispute Resolution

Alternative dispute resolution (ADR) is a broad term that encompasses all forms of dispute resolution other than court-based adjudication. Negotiation, mediation, and arbitration are all considered to be forms of ADR, as are many other related processes such as mini-trials, med-arb, private judging, ombudsmanship, neutral expert fact-finding, and summary jury trials.

Although both mediation and arbitration can be traced back hundreds of years, what has become known as the ADR movement began in the United States in the late 1960s. This was a time of considerable civil turmoil; it was also a time when the laws protecting individual rights were expanded, making it possible for many more people to use the courts for redress of grievances (especially in civil rights and environmental cases). The result was an apparent increase in civil suits that clogged court dockets, caused lengthy delays, and, in some cases, led to procedural errors. ADR was developed, at least in part, in an attempt to overcome these problems. By using negotiation, mediation, or arbitration, disputants could resolve many conflicts more quickly and less expensively than they could through court-based adjudication. This took part of the potential caseload away from the courts, thereby helping to mitigate the problem of case overload.
Other benefits of ADR have been touted as well. For instance, ADR is considered more user-friendly. It usually involves the disputants more directly in the dispute resolution process than adjudication (which relies on lawyers to represent clients and judges to make decisions). ADR often allows the conflicting parties to define both the process and the substance of any settlement to be reached. This increase in disputant involvement leads to greater satisfaction with the outcome. It also increases compliance with the decision in many cases. ADR is also seen as superior because it is more cooperative and less competitive or adversarial than court adjudication. This minimizes conflict escalation and hard feelings and tends to improve the relationship between the conflicting parties, rather than worsening it. This is especially important in situations in which the adversaries must continue to interact after the conflict is settled. Hostile and adversarial court proceedings often push disputants farther apart, making future cooperation (over child custody issues, for instance) more difficult.
Early in the movement, ADR was seen as a way to get communities as a whole involved in local dispute resolution processes. Neighborhood justice centers were intended to get local citizens involved in providing justice for themselves, instead of relying on outside professionals (lawyers and judges) to impose justice on them. Many people believe that this goal has not been achieved, but the potential to reap such benefits remains.
Although many ADR practitioners (mediators and arbitrators) believe that the advantages of ADR far outweigh the disadvantages, other scholars and lawyers have serious concerns about ADR processes. One concern is that ADR is a tool of the dominant class: it simply sugarcoats and perpetuates the domination of the weak by the powerful. Related to this is the charge that ADR provides second-class justice, with first-class justice being that provided by the courts (i.e., legal representation, carefully crafted rules of procedure and evidence, and due process). Those who cannot afford this class of justice can use ADR, which provides no such protections.
Likewise, ADR is believed to encourage compromise. This is fine in some cases but is inappropriate in cases of serious injustice, value-based conflicts, or conflicts that involve violence, confrontation with authorities, or defiance of legal norms. A final problem is one of precedent and community impact. Usually, ADR settlements are private. There is no public record of decisions, no public scrutiny or even awareness of repeated problems. Thus, if a large corporation is allowed to use ADR to privately settle multiple disputes over one defective product, there is no incentive or requirement that the product be improved or that the corporation's behavior change. A court ruling on a defective product, however, can force the company to remedy all the problems with the faulty product and can impose a high enough cost that the company is likely to be more careful in designing and testing its products in the future.
In balance, ADR is useful and even superior to court-based adjudication in many cases; however, it has enough problems that its use should be considered carefully. In general, ADR is best applied when the power of the two parties is roughly equal, when the continuing long-term relationship between the parties is important, when the precedents are clear, and when a cooperative or compromise outcome makes sense. Adjudication may be superior when a party seeks to test a law or set a precedent, when one party is significantly less powerful than the opponent, when a public outcome is desired, and when the case is so complicated that full discovery, rules of procedure, and rules of evidence are needed to yield a just outcome. Other criteria are important as well; further information can be found in the subsequent additional entries on ADR, the entries on each type of ADR and adjudication, and in the references.