I have been privileged to work with some of the best mediators in the country. I have seen the process at its best, and I believe mediation has had a visibly positive effect on professionalism and civility in dispute resolution. But blind adherence to the concept of ADR is not without its dangers, and perhaps it would be a good idea for all of us to keep some of those dangers in mind as the private dispute resolution process matures. ADR was once a cost-saving process. Today, it is not so clear that that is true.
Lawyers often find that the very cost of mediation and arbitration is becoming prohibitive.
The filing fee for a large commercial arbitration with a leading arbitration association will shock you if you have not experienced it. Thousands or tens of thousands of dollars must be laid out in advance. This is particularly distressing in commercial law, because the nature of commerce itself is changing rapidly due to technological advances. Even the best arbitrators will be hard put to make decisions in these areas when only a very few of them ever reach the appellate courts. Everyone knows that there are both effective and ineffective people in this field, like any other.