Almost no one disputes that litigation is expensive and time consuming. Clients recognize that litigation expends bottom line dollars and consumes executive time; lawyers recognize that litigation, regardless of how efficiently it is conducted or how successfully it ends, is often viewed as being conducted for the benefit of the lawyers; and, judges always want to know why the matter is consuming court time and effort when it should be settled. Notwithstanding this seeming census on the importance of alternate dispute resolution, almost all efforts to resolve a dispute come into focus after the commencement of litigation. In many instances, the alternate resolution efforts come well into the litigation and after the completion of fact discovery. This typically results in increased party hostility and a desire by both parties to recover the sunk cost as part of any settlement.
The upside down logic of the current approach can be seen in a sampling of federal statues addressing alternate dispute resolution. The general federal arbitration statute is Title 9 of the U.S. Code. While Title 9 provides for arbitration, court enforcement of the obligation to arbitrate, and for enforcement of awards, it does not address any mechanism for getting the parties together in the first instance. Likewise, 28 U.S. Code Section 651—Authorization of Alternative Dispute Resolution—definition Section (a) states, “For purposes of this chapter, an alternative dispute resolution process includes any process or procedure, other than an adjudication by a presiding judge, in which a neutral third party participates to assist in the resolution of issues in controversy, through processes such as early neutral evaluation, mediation, mini trial, and arbitration as provided in Sections 654 through 658.”
