Litigation is expensive, time consuming, and unpredictable. Juror sympathy can distort the fact- finding, especially in cases where the defendant is a corporation and the plaintiff is an injured child or other sympathetic individual. In litigation between corporations, the years it can take to get a trial can make the eventual verdict meaningless if the cost of the delay in resolving the dispute exceeds the possible verdict. For an individual plaintiff with a small claim, the court system is usually too expensive to make litigation a viable way to resolve the claim. These problems have fueled interest in alternatives to the court system, generally lumped together as ADR. These are contractual remedies, in that the parties must both agree to use the process and to be bound by the result. To the extent that the contract binding the parties is enforceable in court, then the result of the ADR technique will be enforced by the court.

ADR raises two difficult policy issues. The first is the extent that one party can force the other to agree to ADR. For example, should a managed care organization (MCO) be allowed to make accepting ADR a condition of enrollment as a subscriber, when the MCO might be the only health plan offered by the patient’s employer? Should an employer be allowed to demand that all employees sign a binding ADR agreement to keep their jobs? The second issue is that ADR is generally secret, unlike litigation where the issues are aired publically. Should an MCO be able to keep its medical malpractice claims secret by keeping them out of court? Should an employer be able to keep workplace discrimination claims, perhaps racial or sexual harassment, secret by requiring that they be settled through ADR and that the results be kept secret?