Barriers to Use Alternative Dispute Resolution

Although alternative dispute resolution (ADR) is highly effective in many situations, barriers often prevent it from being used as much as it could be. These barriers include a lack of knowledge about ADR options. Few ADR providers have sufficient funds for advertising; thus information about the processes themselves and about providers tends to be primarily word-of-mouth.

Further, at least in the United States, the courts tend to be the socially acceptable way to prosecute disputes. People know about courts; they know how they work. Mediation and arbitration are less familiar and hence less trusted than traditional court-based adjudication. Although some lawyers are familiar with and supportive of the use of ADR in many situations, others are not comfortable with its use. Like the parties they are being asked to represent, many lawyers choose to avoid ADR processes, believing that the court is the best venue for obtaining justice. Lawyers in particular, but other parties as well, tend to be better trained in the techniques of adversarial argument than they are in consensus building or problem-solving negotiation. Therefore, they may prefer dispute resolution processes that use the adversarial approach.

Since the use of ADR is usually voluntary, all the disputants must agree to use it. If one side wants mediation but the other wants to go to court, court wins. Courts or statutes may require that parties try mediation, but none requires that a settlement be reached. Thus, even in mandatory mediation, a party who prefers a court-based process can just refuse to settle and force the issue to go to court.
Other factors inhibit the use of ADR as well. For example, if the parties think that they have strong cases that can easily be won in court, they may be hesitant to enter the less predictable realm of mediation. Why settle when you can win outright? Likewise, if parties think that they can prevail using another power option (e.g., a strike, an election, or a lobbying campaign), they are likely to choose that approach over an ADR process that may require compromise. The same is true if the dispute involves inherently nonnegotiable issues. Deep-rooted moral conflicts over abortion or gay rights or high-stakes, unavoidable win-lose conflicts over the allocation of scarce resources are examples of issues that are not amenable to compromise. Parties confronting these issues usually choose adjudicatory processes over ADR for the resolution of their disputes.


Finally, if one party would benefit from delay or would benefit by imposing higher process costs on the opponent, it will choose adjudication over ADR. The same is true for parties wanting to set a precedent for future cases, which ADR generally does not do. Thus, ADR is possible only when it has potential benefits for all the parties and when the parties are cognizant of its existence and the likely benefits it can provide.