Alternative Dispute Resolution Compared to Litigation
by Frédérique Kwantes
Mediation and Ombudsmen vs. Court
Historically, a huge number of people have considered the court path as the leading method to resolve their disputes. Today, we see a new trend of court avoidance as it costs quite a lot of money. Mechanisms in ADR are much more cost-effective and therefore are becoming more appealing to a wider audience. Because of this, ADR is becoming well-known as an alternative to going to court. But what other advantages are there to ADR? What about the disadvantages? And does this eventually make ADR more favorable as opposed to going to court?
ADR’s pros
As above-mentioned, an advantage to ADR is that it is cheaper than litigation. It also, generally, offers a quicker way to resolve a dispute than compared to litigation. This does, however, depend on the chosen ADR mechanism. In mediation, it will likely be quicker than going to court due to a number of reasons, including but not limited to the fact that arranging a court hearing takes a lot of time. Having said that, it is worth mentioning that an Ombudsman investigation, on the other hand, would require quite some time, Thus, in that case, if you need a resolution quickly, going to court would be the better option. [1]
Furthermore, ADR is striving for a favorable solution to both parties. In litigation, the court will render a result where there is a “winning” and a “losing” party, which, in turn, makes an unpleasant situation even more unfavorable. ADR is based on mutual understanding of different perspectives, as opposed to what the law dictates, and, therefore, an agreement between two parties might make the situation better, as the parties get to understand each other’s perspectives. [2
Lastly, ADR has an advantage with how flexible it is compared to going to court. An Ombudsman’s procedure requires no formal hearing, while, in mediation, the parties will discuss their concerns with the mediator and all together in person. This will make it easier for the attorneys and their clients, as all the procedures and the meetings are tailored to their schedules and not to the ones of the Court.[3]
ADR’s cons
Although ADR is arguably cheaper, there are situations in which it is actually more expensive than going to court. For instance, if a party is unable to pay the court fees, that party has the right to have their fee reduced, and in some cases, the fee does not have to be paid. In mediation, the fees will not be reduced or waived if a party cannot afford to pay them. [4]
Another disadvantage to ADR is that it sets no precedent. If an agreement is reached in ADR, it will most likely remain private and confidential.[5] There are some exceptions to this. In arbitration, some decisions and awards are published, but the names of the parties are redacted.[6] If your goal is to set a new precedent for others to rely upon, going to court may be your best option.[7]
In conclusion, using ADR compared to going to court really depends on the type of dispute, the urgency, the type of parties involved, the financial situation of the parties, and many more factors. You must outline what you wish to accomplish by taking any kind of action and then consider which type of mechanism best suits your interests. ADR has made all the difference as it brings new methods and more options that may be more favorable and suit your interests better.[8]
[1] https://asauk.org.uk/wp-content/uploads/2013/08/Why-use-ADR.pdf
[2] https://www.tpsgc-pwgsc.gc.ca/gcc-bdm/differences-eng.html
[3] https://asauk.org.uk/wp-content/uploads/2013/08/Why-use-ADR.pdf
[4] https://asauk.org.uk/wp-content/uploads/2013/08/Why-use-ADR.pdf
[5] https://asauk.org.uk/wp-content/uploads/2013/08/Why-use-ADR.pdf
[6] https://guides.ll.georgetown.edu/c.php?g=363504&p=2455950
[7] https://asauk.org.uk/wp-content/uploads/2013/08/Why-use-ADR.pdf
[8] https://thestudentlawyer.com/2013/10/23/alternative-dispute-resolution-vs-litigation-which-one-would-you-choose/