There are a number of important advantages to choosing ADR over litigation. The primary reason why people do not chose ADR is simply a lack of knowledge of it. It is also true, however, that we live in a highly litigious culture, where fighting for one's own personal advantage is recommended and expected by many acquaintances of the parties to the conflict. It is difficult for any person to choose something which is not recommended by friends or family members.
Below is a brief list of primary differences in the two systems, judicial and ADR, and the reasons why ADR is preferable whenever possible.
1. Cost. The cost of litigation can be staggering. There is often no simple or abbreviated way to get a case fully heard and resolved. Some types of casses may fall within the jurisdiction of "small claims" courts and procedures. But even there, parties are at a great disadvantage without counsel. Most types of cases, however, cannot be resolved in this way, and fall within the jurisdiction of courts which have detailed procedures and rules of evidence which cannot be navigated without counsel. To bring such a case to trial and have it completed will often cost many thousands of dollars. A large percentage of parties to conflicts have no way of affording this. Others can do so only by depleting limited resources. Unfortunately, the result does not always justify the cost.
ADR procedures are relatively inexpensive. While legal counsel is encouraged, the roles of the attorneys are more limited, and may involve only advice, which usually requires less time and therefore lower cost. Even if the attorneys are presenting the case in arbitration, their billable time will be considerably less than in litigation. Since the fee of the Mediator or Arbiter is divided by the parties, and because the time involved is usually a fraction of the time involved in litigation, ADR procedures are generally very affordable to most people.
2. Time. Because our courts are over burdened with litigation, it can often take a long time to get a trial date. While the parties wait and other pretrial procedures are undertaken, the underlying conflict remains unresolved. Ofen this can have adverse consequences. The conflict may grow worse and may involve more people.
ADR can be started and completed very quickly. There are no obstacles other than simple scheduling.
3. Detail. All legal proceedings are limited in the amount of detail which a final resolution can entail. The law gives the court the authority to do only certain specific things. Most people do not understand this, and are under the false impression that a court can do almost anything which the judge pleases. Because the authority of the court is limited, many issues of importance to the parties necessarily go unaddressed.
In ADR, any issue which is of importance to the parties may be addressed and resolved. There are no legal limitations on subject matter.
4. Being Heard. Litigants often have a deep emotional and psychological need to be heard; that is, to be able to say whatever it is which is burdening them. And if they leave the courtroom without the sense that they have been heard, they will often believe that justice has not been done, even if the law has been fully complied with. Judges are limited to receiving into evidence only that which is legally relevant to the precise issues which are before the court.
In ADR, one of the first things which happens is that people are allowed to say whatever they need to say, and have the other party hear, without being restricted by rules of evidence or court procedures. This very fact is often the most basic step towards resolution and sometimes restoration of relationships.
5. Simplicity. The rules of evidence and the rules of procedure which govern litigation are both complex and limiting. They can be frustrating and can prevent relevant evidence from being received.
In ADR these rules do not apply. An experienced and perceptive mediator/arbiter will skillfully direct the proceedings, and anything which the parties strongly believe to be important will generally be allowed.
6. Stress. Legal conflict, like other types of conflict, produces great stress. And this stress will generally continue as long as the conflict continues. It may not end if the resolution to the conflict is not complete. And it may not end if the conflict takes so long to resolve that the wounds have become seemingly unrepairable.
ADR offers a method of conflict resolution which can resolve the dispute quickly and fully, and therefore allow an end to the stress and an opportunity for healing.
7. Conciliation. Even when a case has been fully litigated, and therefore resolved as far as the law is concerned, relationships are generally broken. The adversarial system is not designed to heal, it is designed merely to end conflict.
ADR can offer an opportunity to heal relationships. It will not always do so, but it offers the best opportunity for doing so. If the Conciliator/Mediator/Arbiter is a person who understands the value of restoration and knows how to encourage it without failing to address the primary goal of the proceeding, which is conflict resolution, then restoration of relationships is given a real chance.