Why Suppose? Let's Find Out: A Public Policy Research Program on Dispute Resolution
This paper argues for a research program examining control over dispute system design and models of mediation to determine how to best structure mediation in court-connected programs.
The handbook of dispute resolution
Most parties in a dispute eventually face a decision problem: whether to settle their dispute upon certain terms or not. Whether negotiating toward settlement directly or with the assistance of counsel and a mediator, parties are best able to make decisions in their own best interest if they understand their alternatives. Those alternatives necessarily include possible outcomes of the litigation process and their anticipated effect, as well as the proffered settlement and its anticipated effect. To this end, decision analysis or risk analysis 1 presents an important opportunity for the parties who want to assess the relative values of their alternatives. This article does not suggest that quantitative comparisons of the dollar values of a party's alternatives represent the only wise way to make a decision. An individual party might wisely decide to reject a significant settlement offer for a claim of modest dollar value in favor of the personal, emotional satisfaction of watching the defendant's executives being cross examined, or the goal of exposing alleged corporate immorality. That might be exactly the right decision, numbers analysis aside. However, I believe that all parties (and their lawyers) benefit from thoughtful analysis of their alternatives through careful and rigorous consideration of the value and cost to them of settlement options and of the embedded risks and possible outcomes of the litigation process. Settlements are truly informed and voluntary only if the parties choose them with a full understanding of their
Alternative dispute resolution: Why it doesn't work and why it does
The great hopes for alternative dispute resolution (ADR) faded quickly, after the initial hype of the 1980s. The authors found that the problem was not with ADR itself, but with ADR as currently practiced by many companies. What characterizes ineffective ADR? An emphasis on winning at any price, a lack of commitment to ADR on the part of both top-level management and company counsel, and the misconception that ADR is not really that different from litigation. But some companies are using ADR effectively. In addition to boosting the commitment of top management to ADR, NCR has defined a number of goals to be pursued in the event of a dispute. Goals like streamlining the proceedings help ensure that arbitration will really be arbitration and not litigation-in-disguise. Finally, the company has created a systematic process, called the Dispute Avoidance Resolution Process, that mandates ADR as the first step in every legal action. What keeps companies from saving time, money, and relationships is the wish to win rather than avoid litigation. Back in the 1980s, experts and executives alike heralded alternative dispute resolution (ADR) as a sensible, cost-effective way to keep corporations out of court and away from the kind of litigation that devastates winners almost as much as losers. Over the next few years, more than 600 large corporations adopted the ADR policy statement suggested by the Center for Public Resources, and many of these companies reported considerable savings in time and money. But the great hopes for ADR faded quickly. Damage awards, legal billings, and the number of lawsuits in the United States continued to rise-even for many of the companies that had embraced ADR. In fact, one study found that rather than reducing costs and delays, at least one form of ADR-court-annexed arbitration-had actually increased them. What had gone wrong? Was ADR really just an empty promise? We believed it was not, but lack of success