Alternative dispute resolution (ADR) is the use of nonlitigation techniques to
resolve legal disputes. While some tort reform legislation has sought to impose
ADR in malpractice cases, ADR is primarily a private, contractual remedy.
Unlike criminal law, which is concerned with protecting the interest of the
state, plaintiffs are not required to file lawsuits if they are injured. An
injured person can contract with a potential defendant to resolve the dispute
privately. Private resolution is attractive because it can be faster, reduce
the attorney's fees and preparation costs, and protect the parties' privacy.
ADR has several disadvantages. Once a person is injured and seeks legal
counsel, the plaintiff's potential attorney may discourage agreeing to ADR
because of the potentially lower awards; the decision makers in ADR are not as
susceptible to jury sympathy arguments. The potential defendant's attorney may
also discourage ADR because it is more difficult to use superior resources and
delay to defeat the plaintiff's demands. From a societal perspective, ADR may
allow important problems to be privately settled without proper review. Since
publicity is a major part of the deterrent effect of litigation, ADR may limit
the deterrent effect of the tort law.
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