The parties and their counsel have the means to avoid those consequences. If they specifically address issues such as production of documents and the conduct of discoveries, and deal with them by agreement, arbitration can be conducted in an expeditious and cost-saving manner. Unquestionably, many lawyers are reluctant to consider negotiation, or any other ADR process, because they fear that to do so suggests a weakness in their case. To overcome that appearance, many corporations and law firms are adopting policies regarding the use of ADR in suitable cases, and becoming signatories of protocols such as the dispute resolution protocol of The Canadian Foundation for Dispute Resolution, or pledges such as the corporate policy statement of the CPR Institute for Dispute Resolution, the effect of which is to actively and voluntarily consider the use of ADR in all suitable cases. The hurdle to resolution may be one of perception.
Parties remain in control of the process, and the outcome.
Resolution of a dispute requires careful preparation whether the process used is ADR or litigation. Careful analysis of the dispute involves fact and document gathering and involvement of those who are able to provide evidence. Analysis of the facts and the law are necessary to permit an assessment of risk and of the value of a claim or level of exposure to a claim. The success rates from using ADR are such that the presumption ought to be that ADR should be used, and justification be sought as to why it is not being used. Clearly a genuine fear exists on the part of lawyers that the use of ADR is a threat to their litigation practices.