Ranting About ADR

I really hate ADR. It's that simple.

For those who don't know, ADR stands for Alternate Dispute Resolution. At law, it usually means either arbitration or mediation. As someone who was brought up to believe in the jury system, the idea of letting a single person given the august title of "Arbiter" decide the fate of someone's claim has always been an anathema to me. It just feels wrong. I don't buy the bull-frell that people peddle that arbiters can be truly neutral. Its like saying Justice Scalia or Justice Ginsburg are never blinded by their personal agendas when it comes to the law. That's why the Supreme Court has more than one judge sitting on it.

Then there is mess that is mediation. Now, to be fair, I think that in some cases it might be a good idea. To my mind, those cases are limited almost exclusively to the Family Law setting where a neutral go between might be able to fashion a compromise that both sides might hate in equal parts. But judicially ordered mediation in civil cases, to my mind, is a violation of the Eighth Amendment's ban on cruel and unusual punishment.

Why is that? Because if you have taken the time to hire a lawyer, file the complaint, and push through with discovery, odds are the relationship is as hostile as a disintegrating marriage. At least with a divorce, there was a time when there were good feelings (even if it was only the wedding day).

So the courts, because someone has sold them on the idea that it will be beneficial, has made it a component of court cases in California. The problem is, from my perspective, is that it just drives up the cost of prosecuting or defending a case. You have to hire a neutral, since the courts don't want to clog up their judges acting as neutrals. That in turns requires vetting a variety of people, doing your research into them, and trying to get the other side to agree to one of the people you like. Then there is the arguments over who pays what.

In the case that I am currently being forced to mediate, I have spent almost as much time trying to get the other side to agree to anyone as I am going to spend in actually drafting mediation brief and mediating the damn thing. Essentially, this is turning into a huge boon for the defense since they get to put off the day of judgment. Mediation is not going to work in this case. The two parties are so far away on this case that they may as well be on different planets.

I frakking hate ADR.