ADR Benefits

Reduced time: Time is a very significant issue when considering the use of ADR techniques. Given the typical length of time from a lawsuit's filing to the actual beginning of a case, parties in a lawsuit often complain about being burdened with the pressure of a case for a very long period of time. This quote from a nurse involved in a lawsuit is typical. "My life was totally consumed with thoughts about this case. I lost my ability to enjoy things that were a pleasure before the suit, and my focus now is solely on the outcome of the trial." ⁽⁴⁾ The longer the time between the notice of a suit and its conclusion, the greater the burden as well as the emotional effect.

Time is shortened dramatically because the lengthy process of discovery does not occur, or it is significantly reduced, as with arbitration. There are no cumbersome court schedules to navigate, and generally fewer people involved.

Reduced cost: "Time is money" is a familiar saying, and when time is reduced, money is saved. Costs can also be avoided because attorneys are usually not involved in each step of the process, as they are in litigation. It is important to note that many ADR practitioners are attorneys, and although their hourly charges may be the standard attorney fees, the number of hours devoted to an ADR process is significantly less than litigation. Other ADR practitioners' fees may be nearly as much as attorneys' fees, but still the time invested is less than litigation.

Although litigation is not the method of choice when resolving every conflict, it is crucial to make sure that the parties' rights are protected. This is the natural role for attorneys in the process. Sometimes it is as limited as reviewing a draft agreement before the parties sign it. At other times an attorney may be the ADR practitioner, because of his or her special interests and skills. Still another way is for parties who are in negotiation, mediation or arbitration to agree to have their attorneys present during some or all of the meetings.

Who pays for what services is a common question. In facilitation, the group collectively or the institution might pay a facilitator as part of a leadership development budget, for example. In negotiation there are generally no neutral's fees to pay, although part of the agreement may involve paying a third party for an expert appraisal or opinion. However the negotiators agree to pay is up to them. Mediators and arbitrators typically use a formal agreement, and will ask the parties to sign it before the processes begin. It is typical for parties in mediation to split the expense, and they may be asked to pay the mediator's fees at the beginning of each session, recognizing that the mediator has no control of the outcome of the process and the parties' satisfaction with it. It is common for the arbitrator's fees to be shared between the parties, and paid before a final report is issued. Different methods of handling fees can be created, depending on the relative power and financial resources of the parties involved. Some institutions or agencies will have members of the staff or the Human Resources Department prepared to function as facilitators, mediators or arbitrators. In this case, fees are generally not paid because the providers are salaried.

Control of the outcome: When a plaintiff hires an attorney to file a lawsuit, the plaintiff usually believes he or she has a winnable case with great merit, and the jury in its wisdom will come to that decision without much trouble. But there are many unknowns in the process, and the ultimate control rests with the jury, sometimes the judge. In litigation, the plaintiff essentially gives control of the process to the attorney, believing that the attorney will be a more powerful advocate for the individual than the person him or herself.

Besides having very little control over the outcome, another disadvantage of litigation is that the outcome itself ("remedy") is usually determined by law. And in civil cases, that outcome is usually money. Rarely do cases go to trial where there are not other issues more important to the plaintiff than monetary damages. Health care disputants often want an apology, an admission of wrongdoing, explanations or to be treated with respect. Those outcomes are not likely to be satisfied with litigation. But they can be with ADR because people can express those needs directly to each other or through a neutral third party. And conversely, using ADR methods can result in similar large financial awards as in jury trials. In the case of medical malpractice cases, people can still have their financial needs met using mediation or arbitration.

An additional outcome to consider is that of confidentiality. The process and results of a lawsuit are public information, and open to public disclosure. Negotiation is private and only known about by others if the parties disclose information themselves. Mediation is a confidential process, the details of which are not discoverable later in court. An agreement arrived at in mediation, if it is filed in court, is public information, but the agreement does not include the details of the discussion. Mediators have an ethical responsibility to maintain confidentiality. Arbitration is confidential to the extent that the parties structure it is as such. They can ask that the arbitrator publish only a conclusion in his/her report, and not put any details of the discussion in writing. In both mediation and arbitration, all parties are expected to keep any of the discussions confidential. In a public courtroom, no one is asked to observe confidentiality.

Maintaining relationships: One of the most powerful benefits of ADR methods is that relationships can be maintained much better than when using litigation. Litigants commonly talk about how much they have come to despise each other in the process. The conflict has only escalated during the process of preparing for trial, and people often think they have too much invested in the trial to consider the option of turning back. At this point, relationships may be so damaged that they are irreparable. In contrast, ADR methods try to keep parties talking together whenever possible, and because they address issues that are important to people as people (an apology, for example), the likelihood of not damaging relationships further, and even improving them, is enhanced.

Empowerment: Another significant, thought less than obvious benefit of ADR is its ability to empower people. This empowerment takes two forms. First is the sense of empowerment that comes from negotiating one's own problems, even though a neutral third party may have assisted in the process. Second is the power that comes from having participated in an easy to learn process so that the parties may try some of the techniques on their own in the future.

Negotiating the use of ADR may be prohibited under some circumstances, for example, in a collective bargaining agreement. In that situation the grievance procedure details how the conflict must be handled. It is possible that the grievance procedure itself will include the use of mediation and/or arbitration, but that use of ADR has already been negotiated as part of the collective bargaining agreement.

If ADR has so many benefits, when is litigation preferred? Litigation is best when there is new law to test, and thus people's rights to carefully protect, or the case is a precedent-setting one. If there are significant power differences, if a public outcome is desirable, and/or if the case is so complicated that discovery, rules of procedure and evidence are needed, litigation is the preferable course. But if the situation is fairly straightforward, the power is fairly well distributed (i.e., both sides have something of value to negotiate with) and there is a need or desire to maintain a continuing relationship, ADR should be considered.

Table 2. Appropriate use of litigation

Litigation is preferred over ADR when:

Testing new law

Case is precedent-setting

Significant power differences exist

Public outcome is desirable

Case is extremely complicated and discovery is needed

⁴personal communication with author