There is good news for those who are disheartened by the deplorable lack of attractive options available to parties involved in a difficult legal dispute. An alternative dispute resolution (ADR) process known as Comprehensive Adjudication is gaining increasing attention in the United States after years of proven success in other developed countries. The measurable advantages of this superior process are undeniable when compared with alternatives such as public court litigation, arbitration, or mediation.
Comprehensive Adjudication swiftly provides a more proficiently analyzed, enforceable decision, expertly resolving nearly any type of civil legal dispute at a fraction of the cost of any other alternative. The benefits are not just incremental. Comprehensive Adjudication has the potential to transform the legal system’s entire approach to dispute resolution.
The costs, delays, and risks associated with each of the traditional forms of dispute resolution are unacceptably high for parties who simply want a fair decision that resolves their legal controversy. Frequently, the cost of pursuing a valid claim, or opposing an improper one, approaches or exceeds the benefit of obtaining a proper outcome. The pursuit of a final, enforceable decision takes far too long and, even after paying exorbitant legal fees, the risk of an unjust result remains unacceptably high. As a consequence, legal battles are rarely settled because the law and evidence dictate a particular outcome. Nearly all cases settle because the costs and risks of pursuing a just result make it economically impractical to obtain.
There are many factors that drive up the cost and risk of conventional dispute resolution systems, but they all boil down to a single, fundamental flaw. Each of those systems is structured around separate legal counsel for each party battling one another in an inefficient and pointless adversarial process. There is no scientific basis for believing that judges and jurors can reliably ascertain the truth out of the conflicting assertions and exaggerated spin of trained advocates whose loyalties lie more heavily with the interests of their clients than with an objectively just result. Yet, our blind adherence to that unreliable adversarial process has led to costs and inefficiencies that have utterly debilitated conventional forms of dispute resolution.
The parties to a legal dispute often initially justify the exorbitant cost of hiring separate legal counsel based upon a false belief that their interests can only be protected by having an expensive legal warrior in their corner. But they soon realize that the problem with utilizing a persuasive advocate to argue their position is that the other side has one too. The extraordinary inefficiency of resolving disputes via litigation warfare drives up the costs and risks to both parties but provides no significant advantage to either.
Fortunately, there now is a far better alternative. Comprehensive Adjudication was specifically designed to address the unacceptable cost, delay and risk associated with public court litigation and traditional arbitration. Instead of each party hiring separate legal counsel to inefficiently battle one another in court or arbitration, the parties split the cost of a single, neutral “Adjudicator” with specific expertise in the relevant area of law. The jointly selected, neutral Adjudicator vigorously searches for all legal authority and evidence supporting the positions of every party to the dispute, before swiftly providing the parties with a thoroughly analyzed, enforceable written decision that determines which party should prevail.
By utilizing a single, jointly selected, neutral Adjudicator to perform the work that, otherwise, would be performed by separate counsel battling one another before a separate judge or arbitrator, the parties are able to automatically cut cost and delay by at least 50% — and significantly reduce the risk of an unjust outcome. No other form of dispute resolution has this critical feature.
Comprehensive Adjudication Dramatically Reduces The Time and Cost Required To Properly Resolve Difficult Legal Disputes
When a lawsuit is filed and each of the parties hires separate counsel, all the attorneys:
- Research the same legal authorities.
- Review the same documents and other physical evidence.
- Examine the same witnesses at the same discovery depositions.
- Attend the same court status conferences.
- Brief the same procedural motions, substantive motions, and discovery motions (but simply emphasize different law and evidence)
- Attend the same court hearings.
- Prepare for and attend the same trial.
- Examine the same trial witnesses.
The work described above is where the vast bulk of legal expense occurs. However, there is enormous duplication of effort and cost because separate counsel for each party each perform nearly identical work.
By utilizing Comprehensive Adjudication instead of litigation and splitting the cost of a single, neutral Adjudicator to do the work that, otherwise would be performed by each of the parties’ separate counsel, the cost is cut by 50% when there are only two parties to the dispute, and much more when there are multiple parties.
But the cost savings does not end there…..
When disputes are litigated in a public court:
- The lawyers initially investigate the facts and uncover the evidence through a variety of discovery procedures.
- Witnesses are examined under oath and their documents are carefully reviewed by counsel for relevant evidence.
- The collected evidence is then assembled for presentation to the court in connection with a variety of procedural and substantive motions.
- The collected evidence is then reassembled once again, several years later, for presentation to a judge and jury at trial. Witnesses that were previously examined under oath in depositions years earlier are examined again at trial.
Comprehensive Adjudication dispenses with all the costly duplication of effort described above. Because the jointly selected, expert Adjudicator performs the investigative function otherwise performed by counsel as well as the decision-making function otherwise performed by a judge, witnesses and evidence only need to be examined once. There is no need to repeat the process multiple times for presentation in court. As a result of this efficiency, Comprehensive Adjudication provides additional savings of cost and time.
And there is even more….
Because of the adversarial structure of the public court system, an enormous amount of time is wasted on procedural disputes and motions that have little to do with the substantive merits of the dispute. Each party’s attorneys are motivated to seek every conceivable procedural advantage they can possibly obtain.
Enormous amounts of additional time and expense in public court proceedings also are devoted to dispositive motions (e.g. motions for summary judgment and motions to dismiss) that seek to obtain a decision on some or all issues in the case without a trial.
Comprehensive Adjudication dispenses with all the time and expense associated with these disputes and motions. Efforts to obtain a procedural advantage do not occur because the Adjudicator is a neutral who has no adversary in the process. Dispositive motions serve no purpose because there is no separate trial that a party might wish to avoid, and legally defective claims or defenses are promptly rejected as part of the regular adjudication process.
Comprehensive Adjudication Reduces The Risk Of An Unjust Result
In most jurisdictions the parties have little control over the judge and jurors that are randomly assigned to decide their dispute in public court proceedings. The prior experience of the judge that is assigned to the case may be completely outside the area of law that is relevant to the dispute. Unquestionably, the risk of legal error increases when the judge lacks specialized experience.
The risk of an unjust decision is even higher when it will be made by jurors with no legal experience and unknown biases.
Comprehensive Adjudication dramatically reduces the risk of an unjust decision by allowing the parties to jointly interview and select a neutral Adjudicator from a pool of candidates who specialize in the area of law that is most relevant to the dispute. In addition, most Adjudicator candidates are preeminent litigation attorneys who are highly skilled at searching for relevant evidence and cross-examining witnesses. The Adjudicator can be selected based upon experience, integrity, neutrality, diligence, and intelligence. The result is a more expertly analyzed legal decision by an Adjudicator jointly chosen by the parties based upon specific desired qualities.
Why Is Comprehensive Adjudication Superior To Traditional Arbitration
Technically, Comprehensive Adjudication is a form of arbitration and the Adjudicator’s decision is enforceable under the terms of the Federal Arbitration Act. However Comprehensive Adjudication differs from traditional arbitration in several important respects:
- All the duplication of effort associated with the retention of separate counsel in public court litigation also plagues traditional arbitration proceedings. Only Comprehensive Adjudication provides the dramatic cost savings that flow from splitting the cost of a single Adjudicator doing the work that otherwise would be performed by each of the parties’ separate attorneys.
- Traditional arbitration permits very limited pre-hearing discovery or no discovery at all. In contrast, Comprehensive Adjudication requires the parties’ jointly selected Adjudicator to conduct a thorough investigation of the law, evidence and testimony that support each of the parties’ positions in the dispute.
- Traditional arbitration decisions cannot be appealed except under very limited circumstances. Consideration of inadmissible evidence and most legal error is not a basis for appeal. However, the parties to a Comprehensive Adjudication can agree in advance to permit a swift appeal to a private appellate specialist.
Proven Success
Various forms of private adjudication are used effectively in a variety of sophisticated legal systems. For example, in England and multiple other countries, an adjudication system is utilized to resolve disputes associated with construction projects (see e.g. https://www.legislation.gov.uk/uksi/1998/649/schedule/part/I/made. Similar adjudication systems have been utilized in the Netherlands, Ireland, and Norway to resolve legal disputes concerning investment, insurance, and banking services. (see e.g. https://www.kifid.nl/about/.
In the United States, the non-profit Intelligent Justice has compiled a set of standard rules of procedure and a statement of best practices applicable to all Comprehensive Adjudication proceedings. Both are published on the organization’s website at IntelligentJustice.org. Parties to a legal dispute should insist that any provider of Comprehensive Adjudication services commit in writing to adhere to the Intelligent Justice rules of procedure and best practices.