Why is ADR Growing in Popularity?
by John Miles, CEO
The Need for Control
Most of us want to feel in control of our circumstances. When I was a young man, I believed aptitude and hard work brought success. The older I have become, I acknowledge many things are outside my control. I still believe in hard work, persistence, and strategic planning. However, as the recent pandemic and resulting government shutdown proved, the best-laid plans can upend quickly. Things happen in life that are completely out of our control. With conflict resolution, those who have suffered a sudden and unexpected loss often have a greater need to be heard and exercise control.
The Inevitability of Conflict and the Need for Resolution
We are all wired differently. Life experience and personality cause us to deal with conflict in different ways. And some of us prefer not to deal with it at all. We want to enjoy relationships with family and friends. From a young age, we develop strategies to resolve disagreements. When the ability to resolve conflict — even simple conflicts— fails, the resulting stress and anxiety are very uncomfortable. Wanting stability in life, we strive to find ways to live at peace with those around us.
In my experience, successful resolution requires three things:
1) Identifying the issues giving rise to conflict
2) Addressing the issues
3) Reaching resolution
These three steps occur in the settling of conflict, large or small. Consider a couple deciding where to eat. The wife wants Mexican food, and the husband would like a steak. The husband does not like spicy food but wants to spend a nice evening with his wife. He decides not to make an issue of where they dine and agrees to her choice. The resolution is to eat Mexican this time, and steak the next. This type of resolution happens countless times throughout the day at work and at home. Most of us have become so accustomed to it that we don’t even notice it isoccurring.
What about conflicts with larger and more complex issues? Suppose the wife is offered her dream job in a city across the country. Her husband does not want to move. He loves his job and the neighborhood where they live. The issue seems obvious, but other areas of conflict may simmer under the surface. The husband may feel his wife puts too much emphasis on her career and not enough on him and the children. The wife may feel the husband fails to support her and is jealous of her professional success. One will be required to make a big sacrifice. The resolution of this issue will have an enormous impact on their relationship.
Even though the conflict is larger and the stakes higher, the steps for successful resolution remain the same. The main issue is whether the family will move across the country for the wife’s new job. But many other issues need to be addressed for the couple to move forward in a positive way. Constructive conflict resolution is even more critical in situations like this, where parties will have an ongoing relationship after the issue is resolved. With such complex disagreements, the process can be as important as the ultimate resolution.
Obstacles to Resolution in Litigation
Most ADR professionals will tell you that parties are far more likely to abide by agreements they believe resulted from a fair process over which they had their grievance heard and some control in the outcome.
The natural way an individual communicates is the first thing sacrificed in litigation. Upon hiring an attorney, they give up any ability to talk to person on the opposing side. All communication occurs in writing, or if verbal, it is subject to the foreign rules of procedure and evidence. This inability to instinctively communicate can be enormously frustrating to parties in conflict. I recall representing a woman who fell in a store. Before trial, we ran through her testimony. I would interrupt her and remind her to stay away from certain topics. Cleary exasperated, she asked, “Why can’t I talk about what matters?” Litigation can be an incredibly stressful experience for someone who already has experienced a loss. Not being able to communicate naturally compounds the problem.
Loss of Control
When parties deal with conflict in life, they decide when and if to compromise as did the earlier couple deciding where to dine. In litigation, parties often lose control over the timing and decision making part of the process. Litigation often takes on a life of its own. Parties can get swept along and feel they must surrender decision making to a judge or jury.
The starkest example of this came from a case I tried years ago. It was an automobile accident where the plaintiff injured his shoulder and had to have it surgically repaired. I represented the driver who caused the accident. The case was risky for both sides. The plaintiff had a significant injury, but there was a real question whether it was related to the accident. On the fifth day of trial, the jury announced they had reached a verdict. Conventional wisdom says the longer the jury deliberates, the higher the verdict will be. They had deliberated for two days, so I wasn’t feeling good about the outcome. As the jurors filed in, the plaintiff’s attorney asked for a minute to speak to his client. He had seen something worrisome on the faces of the jurors. He turned to me and asked, “Is your $100,000 still on the table?” With a sense of relief, I replied in the affirmative. The plaintiff’s attorney turned to his client and said. “You need to take the $100,000.” The plaintiff looked at his attorney and said, “I’ve come this far. I want to hear what the jury has to say.”
The jury awarded the plaintiff $7,000. Ninety-three thousand dollars less than if he had agreed with his attorney’s last-minute suggestion to take the offer. The jurors didn’t believe the shoulder surgery was related to the accident.
The Advantage of ADR
Let us take another look at the husband and wife, who must decide whether they will move across the country. Imagine if the couple had taken this issue to trial. All communication would be filtered through their attorneys. They would surrender control of a deeply personal decision to 12 strangers. These 12 strangers would only hear as much about the dispute as the rules of evidence would allow. For example, the judge could determine that the husband’s belief that his wife cares more about her career than the family was not relevant to whether she should accept the job offer. The judge could rule that the wife’s suspicion that her husband was jealous of her professional success not be heard by the jury. These issues probably aren’t causally related to whether the job offer should be accepted but critical to the long-term health of the marriage.
If put in a courtroom crucible, it probably wouldn’t take the wife and husband long to stop the proceedings and return home to talk further. As difficult as the discussion and eventual decision would be, they would rather control the outcome themselves. This illustration demonstrates why, for most, ADR is preferable to traditional litigation.
If managed properly, the ADR experience allows people to resolve and move past unpleasant and sometimes tragic occurrences using a process that treats the matter with dignity and respect. A forum allowing parties control over the outcome and an ability to tell their story and have it be heard. This accounts for the rise in popularity of ADR. I believe if the ADR industry did a better job communicating its benefits to the public, ADR would become even more in demand. It will never replace traditional litigation. Some disputes need to be tried and a verdict rendered. I applaud the men and women who bring these cases to the bar. However, given the apparent advantages of ADR with most disputes, it is only a matter of time until it becomes the preferred method of dispute resolution.
ABOUT THE AUTHOR
John Miles is the CEO of Miles Mediation & Arbitration. In addition to his executive duties, he mediates high-value and complex matters, on request at a per diem rate. He oversees neutral training and development at Miles.