I submit that failures are not attributable to ADR but rather its inappropriate use and unrealistic expectations. The parties may, for example, try mediation before either knows the bottom line. Successful ADR depends on whether the parties have the ability and willingness to resolve a dispute. If either is missing, ADR can be an expensive mistake. Even if parties have a mutual, good faith desire to resolve a dispute, they will be dissatisfied if the procedure is not well thought out or inappropriate for the circumstances.
Timing is also important.
In patent cases, neutrals are likely to be recognized legal experts who also have experience in the disputed technology. The court system allows for appeal, but appeal from decisions by arbitrators is usually very limited. Judges defer to arbitrator's awards, including those made without opinion. Some judges have bent over backwards to uphold awards by imputing that the arbitrator gave full consideration to unmentioned issues. 8 Arbitration sometimes offers more capable fora for addressing some technological and legal issues.