This essay will provide a detailed examination of what Alternative dispute resolution (ADR) is, particularly mediation, the various techniques of ADR, the advantages and disadvantages of ADR; and whether or not courts should have the authority to compel individuals into undertaking mediation or other forms of ADR. This essay argues against courts having the power to compel litigants into mediation but may be afforded powers to encourage parties to go through mediation at first instance. This essay will base its arguments on whether courts should compel civil litigants to follow the ADR route upon the perceived advantages of ADR and its success rate. The contention of this essay is not that mediation is inappropriately used to settle disputes, but that court-ordered mediation is inappropriate.
I will begin with a brief overview of Alternative Dispute Resolution, its advantages and disadvantages and focus primarily on mediation. The next section will explain the process of mediation and then go on to give reasons as to why court-ordered mediation is inappropriate.
ADR is a term generally used to refer to informal dispute resolution processes in which the parties meet with a professional third party (not a judge in his professional capacity and sometimes more than one third party) who helps them resolve their disputes in a way that is less formal and often more consensual than is done in the courts . Goldberg, Green and Sander , identifies four separate goals of ADR; to relieve the court congestion as well as undue cost and delay; to enhance community involvement in dispute resolution process; to facilitate access to justice; and to provide more effective dispute resolution. The concept of ADR is extremely broad. Defining ADR is difficult because an infinite variety of procedures properly fall into a category of “not a trial.” For instance, if dispute arises and is resolved short of a courtroom, in a sense that resolution is ADR.
Nevertheless, certain categories of ADR have been named and understood to involve the use of particular means and methods to produce the desired end result. These procedures include: negotiation, mediation, arbitration, med-arb, early neutral evaluation, settlement conference and conciliation to name a few. However this essay will concentrate on mediation as a form of alternative dispute resolution.
A potential advantage of ADR is that because parties voluntarily involve themselves in the process, and in most cases agree to the outcome there is rarely a difficulty with enforcement. Enforcement is a much greater potential problem of litigation where a party who has lost in court may be unwilling to meet judgement. At the same time, individuals have pointed to the advantages of the type of settlement which could be achieved by ADR over the costly and divisive nature of litigation.
Nonetheless ADR also has its disadvantages, according to Fiss “ADR implicitly asks us to assume a rough equality...