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London Consult Human Studies Center, Ltd.
The State of the Art |
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ALTERNATIVE DISPUTE
RESOLUTION: Some professionals advocate litigation as "The Solution." Litigation, it is argued, provides a means to establish some case law on the issue [for both sides] and can provide financial rewards, when successful. The relative costs for the losing parties are high. Some have even argued that litigation is an important part of the healing process. While many have argued that clients should litigate, there is another perspective that must be considered. Such advocates ignore the considerable costs, role alteration, and policy concerns related to litigation.
PSYCHOLOGICAL COSTS: Thompson [1993], a courtroom litigator, maintains that "it is the uncommon situation, and the unusual client, that produces healing in the litigation process ... the essential components of litigation are conflict and advocacy, hardly tools calculated to produce healing." [p. 131] Lawyers that identify with the "client and the cause can sabotage objectivity in the course of any litigation." [p. 131] Litigation is an inherently high stress experience that forces the client to revisit the pain attributed to the repressed memories. If the client's goal is the intentional infliction of pain and revenge toward the defendant, litigation is an option but this is not therapeutic. Ewing [1992], a psychologist and attorney, likens a lawsuit and complaints ... to sticking one's head in the lion's mouth and then complaining when it's bitten off." [p. 131] He shows that litigation is "an extremely painful and costly exercise that achieves none of [the argued for] hopes." [p. 132] The client has to prove the allegations by a preponderance of the evidence. Expert witness testimony is expensive, is often not admitted, and is frequently taken with "a grain of salt." [p. 132] He warns that there will be counterclaims, depositions, interrogatories, motions, endless delays, and testimony. There will be endless hours of legal arguments and mysterious tactics. The verdict may not be what the plaintiff wants. Even if a large award is given, there is little likelihood that the plaintiff will see much of the money. There may be no or little funds, endless appeals, and may be judgment - proof. "Even the most successful civil litigants rarely end up feeling that they have received justice or been made whole as a result of their lawsuits. Those looking for justice are often least likely to find it in the courthouse." [Ewing, 1992, p. 134.] The reality is that the psychological costs for both of the parties and their significant others are extremely high. As is typical, the vast majority of cases settle. A great many of the civil cases are found for the defendant. The costs of litigation are enormous. Litigation has a tendency to keep the client in the victim role and destroys what may remain of their support system. The psychological data suggests that litigation does not heal the conflict. In his 1982 address at the American Bar Association, Chief Justice Warren E. Burger [1982, March] proclaimed that the "obligation of our [lawyer] profession is, or has long been thought to be, to serve as healers of human conflict." [p. 274] Burger further quoted the advice of Abraham Lincoln. Lincoln said, "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses, and waste of time." [Burger, 1982].
ALTERNATIVE DISPUTE RESOLUTION
There are a variety of alternative dispute resolution [ADR] procedures that can be applied in cases. The major examples are mediation and arbitration. A combination of approaches is advisable in some situations depending on the needs and wants of the parties.
THE MEDIATION PROCESS: Mediation is a process where a trained, independent, neutral, facilitator helps the parties to communicate and to make voluntary, informed choices in an effort to resolve their disputes. Mediation is not advocacy, arbitration, counseling, custody evaluation, or psychotherapy. The process of mediation follows a standard set of practices and procedures. The standards of conduct includes impartiality, neutrality, parties ability to negotiate, self - determination regarding the parties, self - determination regarding the other parties, confidentiality, duty of disclosure, full disclosure, termination of the process, and settlement.
THE ADVANTAGES OF MEDIATION FOR THE PARTIES: Mediation is an extremely effective problem solving process. Mediation is based on the belief that people are responsible for making decisions that influence their own and their significant other's lives. The process is a self - empowering experience that is needed with relationships in distress. Mediation systematically considers accommodation, develops options, and isolates areas of agreement and disagreement. Mediation assists the parties in their own problem resolution. Mediation reduces irrationality by channeling personal recriminations through focusing and refocusing the parties attention to the actual issues and interests. Alternative solutions are explored in such a way that all of the parties can explore their needs and options without losing face or respect. The process improves communication patterns and reminds the parties of the costs of conflict and unresolved disputes. The focus is on establishing competence, integrity, and fairness because the ultimate authority belongs to the parties. Mediation does not impose a solution. The mediator's goal is to assist in negotiating a settlement of issues identified by the clients, their representatives, and mediator as germane to the dispute. The process focuses on problem solving, clarifying positions, identifying and considering the valid interests of all concerned and affected parties. Mediation reduces anger and hostility by encouraging direct goal directed communication between the parties. The process reduces the likelihood of future conflict, decreases alienation, and aids in resuming a workable The selected mediator should be able to:
The research shows that in appropriate situations, mediation:
THE DISADVANTAGES OF MEDIATION: One of the major disadvantages of using a mediation approach may be that it could actually perpetuate systemic problems by reducing pressure to change the current systemic problems. A further disadvantage is that for mediation to work, the participants must "bargain" in good faith and keep their promise to comply. Mediation is not the process of choice when there are hard-core unreasonable adversaries. The approach will fail when there is no real commitment or ability to resolve the conflict, or when one or more of the parties is sociopathic. Some clients are incapable of respecting their own or other’s interests.
ADR: THE ARBITRATION PROCESS: When mediation fails to reach an acceptable solution, a further alternative to litigation is arbitration. Arbitration can accommodate small and large reasonable claims. The forum is based on the freedom to contract, requires mutual agreement, and improves the quality of decision making. The model is not a method of compromise but rather a means of dispute resolution that can address issues of error, omission, negligence, and can decrease the filing of frivolous cases.
THE ADVANTAGES OF ARBITRATION FOR THE PARTIES: The data suggests that arbitration is affordable, is an appropriate alternative to litigation, and avoids court bottlenecks. The process can be convenient to all parties, is cost effective, and can make creative awards considering individual circumstances. The decisions and amounts are similar to litigation, provide equity and a fair method of resolution. Arbitration can provide finality, flexibility with settlement options, and can focus on remedying health care problems resulting from negligence. The forum can have adequate due process protection, built in procedural safeguards, and provides a higher level of satisfaction for the parties. There is data that supports claims of improved case processing, less expense, more informality while maintaining a just resolution. Arbitration is more expeditious, has no bias for either party, is non-combative, and provides for privacy. The data suggests that it affords some predictability, avoids unnecessary appeals, and makes awards on merits not on compromise. Decisions can be final and binding but are not precedent setting. Arbitration expedites resolutions, utilizes independent third party decision makers, and offers the client freedom of choice. Arbitration can function with large and even complex cases. There is no empirical support for a belief that when an expert panel is used there is an inherent bias. Powsner and Hamermesh [1987] reported that three-fourths of the Michigan arbitrated cases from 1976 to 1986 favored the respondents. The panel decisions were unanimous in all but two cases. They found that the professional members did not unduly influence the decisions. The professional members tended to interpret and assist the panel in understanding technical matters. The decisions were consistent with the state tort and malpractice law. In comparative studies, overall win rate for plaintiffs was 47.5 to 50 percent in litigation. The Michigan arbitration rate was 47.7 percent for the plaintiff [Powsner & Hamermesh, 1987]. Ladimer et. al. [1981] found that 45.4 percent of the arbitration awards and 53.3 percent of the litigation awards were for the plaintiff. There was no statistical difference in the forum results. There was no statistical difference in the total amounts of indemnity paid. There were also considerable time differences
THE DISADVANTAGES OF ARBITRATION FOR THE PARTIES: The opposition has maintained that arbitration should not be used because it violates the constitutional right to due process, the contracts are unconscionable, delegates judicial authority, and deprives victims of a full and fair hearing and the right to trial by jury. The opponents maintain that arbitration is not cost effective and the risk of bias is too high to be constitutionally tolerable. There have been claims regarding the make-up of panels. It is believed that professional specialist on the panel violates the principle of an impartial tribunal. None of these arguments against arbitration have been supported by the research in the field.
The literature shows that ranges of alternative dispute resolution procedures are effective. The decreased costs and increased benefits of using Alternative Dispute Resolution processes usually exceed litigation.
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