Why It Works Far Better To Use Comprehensive Adjudication
For decades there has been a search for satisfying alternatives to the unacceptable cost, delay, and risk of resolving legal disputes through litigation in our public court system. For most of that period, the only alternatives were arbitration and mediation which each come with their own set of problems and deficiencies. But recently, there is increasing attention focused on another form of alternative dispute resolution called Comprehensive Adjudication – an attractive option that has significant advantages.
How Does Comprehensive Adjudication Work?
When the parties to a legal dispute agree to utilize Comprehensive Adjudication, they jointly interview and select a neutral “Adjudicator” from multiple candidates with expertise in the applicable legal specialty. The neutral Adjudicator performs the investigation that otherwise would be performed by expensive separate counsel for each of the parties, zealously searching for all the law and evidence supporting the claimant and, just as zealously searching for all the law and evidence supporting the defendant. The Adjudicator then swiftly provides the parties with an enforceable decision resolving all issues raised in the dispute.
The parties split the cost of the single neutral Adjudicator’s investigation of the law and facts, instead of each party paying their separate attorneys to research the same legal authorities, collect and analyze the same evidence, examine the same witnesses, and attend the same hearings and trial. That alone, automatically cuts each of the parties’ legal costs in half or more. And, because the Adjudicator also decides the dispute, the “trial” begins immediately with the Adjudicator’s procurement of relevant evidence and thorough examination of relevant witnesses under oath. There is no need for expensive separate counsel to repeat that process again in future presentations to a judge, jury, or arbitrator.
If the parties agree at the outset of the Adjudication, a right of appeal to a private appellate specialist also can be included in the process.
The Problems with Arbitration
Arbitration was intended to provide a faster and simpler alternative to litigation in the public courts, but the arbitration process requires the parties to give up some important procedural rights. To remedy those deficiencies, arbitration proceedings recently have begun to look more and more like the inefficient public court proceedings they were meant to replace. Consequently, the arbitration process has come under increased critical scrutiny. See e.g. Harvard Business Review at https://hbr.org/1994/05/alternative-dispute-resolution-why-it-doesnt-work-and-why-it-does.
The criticisms of arbitration include:
- An arbitration cannot even begin until the “arbitrability” of the dispute is resolved. Challenges to the enforceability of contractual arbitration clauses are litigated in court battles that often take months or even years to resolve.
- Like public court litigation, the arbitration process generally relies on each of the parties paying their expensive separate counsel to research the same legal authorities, review and analyze the same evidence and examine the same witnesses at the same arbitration hearing.
- Prehearing discovery of evidence and depositions of witnesses is either severely restricted or not permitted at all.
- Arbitrators are permitted to consider evidence and testimony that would be excluded as inadmissible in a public court.
- Arbitration decisions can only be appealed to a public court under very limited circumstances. Generally, legal error by the arbitrators is not a legitimate basis for appeal.
- There is a widespread suspicion that professional arbitrators who want to be retained to decide multiple disputes involving the same company or industry may be tainted by bias in favor of the sources of that potential repeated business.
Fortunately, parties who utilize Comprehensive Adjudication instead of arbitration experience none of those problems because Comprehensive Adjudication was specifically designed to eliminate them.
Mediation Works Better with Comprehensive Adjudication
In a mediation, the parties attempt to negotiate a settlement with the assistance of a professional mediator retained to facilitate the negotiations. An amicable settlement has the potential to be a positive outcome, especially when the settlement terms reflect the merits of each party’s position in the dispute.
However, any successful settlement negotiation requires significant compromise from all the parties, including the party that legally deserves to win. And, far too often, compromise is motivated entirely by the unacceptable cost, delay, and risk required to further pursue a truly just outcome. Comprehensive Adjudication dramatically reduces the cost, delay and risk associated with other forms of dispute resolution. Hence, a mediated settlement obtained during a Comprehensive Adjudication is far more likely to be based upon the substantive merits of each party’s position.
The Comprehensive Adjudication system provides dramatic advantages over all other forms of alternative dispute resolution and should be seriously considered by parties embroiled in any civil legal dispute.