I think most would agree that what the public wants is not “Alternative Dispute Resolution” as the antidote to “Litigation” but Effective ADR.

There is a lot of ADR happening out there these days but in my opinion a lot of it is not that effective, and much of it is no more than the hosting of inter party settlement negotiations at a suitable location that can offer a large room for joint sessions and some separate rooms for the parties to break out and talk privately amongst themselves and their advisers.

The mediator, after giving the opening speech to the parties is then relegated to a mere relayer of information and offers between the two camps who after facing each other off around the joint session table for a short a time as possible, often saying nothing to each other and allowing their lawyers to give their opening speeches, scuttle off to their respective bunkers never to set eyes upon each other again for the remainder of the so-called mediation.

This style of mediation has regrettably become common place. If it produces a successful outcome it becomes part of the statistics about the success of mediation as a form of ADR. But in reality the success was the result of a hosted settlement conference, with the mediator being given the role of host.

Effective Settlement Negotiations are just that. They are not Effective ADR.

Effective Settlement Negotiations can be just as easily conducted between willing parties to a dispute without a mediator as they can be with a mediator.

So why do so many agree to pay up to $10,000 to a mediator simply to preside over their settlement conference?

Good question.

I have attended expensive medical negligence mediations and attended settlement conferences between a medical insurer and my client without a mediator and achieved similar good outcomes.

In essence, the key success factor is often not the “ADR” but effective negotiations being conducted with two willing parties who have both identified enough reasons to hold the settlement conference and who have a mutual desire to achieve an out of court settlement.

The fact is that most disputes are settled out of court, but in the “shadow of a court hearing”.

The question I pose here is this - why is it the case that so many people, engaged in dispute, have to engage in “litigation” for months and incur huge legal bills before they feel ready to engage in effective settlement negotiations?

Is it really necessary for the majority of disputes?

I intend to explore this interesting issue in subsequent blog posts but welcome comment from any readers of this post who feel they can offer some useful insights.

Cheers…..Chris Whitelaw