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ALTERNATIVE DISPUTE RESOLUTION

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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