The benefits of Alternative Dispute Resolution ("ADR"), particularly mediation, are well documented and often touted. Some of these benefits are: cost savings, confidentiality, preservation of business relationships, finality, better outcomes, and more control. The list goes on, and rightfully so. The Comell/PERC study and the more recent BTI study, among others, have made it clear that corporate America has embraced ADR, particularly mediation, as a preferred means of resolving many disputes. As a long-time member of an in-house law department, I have watched our own management of commercial litigation and claims evolve from a typical "winner takes all" approach to a more creative, problem-solving approach. Instead of immediately drawing the battle lines when a claim or lawsuit is filed, we often analyze the dispute as a business problem to be solved. In short, Georgia-Pacific, like so many companies in the United States, recognizes the benefits of early case assessment, straightforward negotiation (the sooner the better), and ADR as a means to obtain significant cost savings and, frankly, more positive outcomes. Having said that, the question remains why companies continue to litigate so many cases, often spending enormous sums of money defending or pursuing claims in the face of overwhelming evidence that early case assessment and ADR can yield such positive benefits. This article will explore some of those reasons and ask why organizations so often continue to manage litigation as a win or lose proposition.
Phillip M. Armstrong,
Why We Still Litigate,
8 Pepp. Disp. Resol. L.J.
Available at: http://digitalcommons.pepperdine.edu/drlj/vol8/iss3/3