Chapter 1 - What Parties Might Be Giving Up and Gaining When Deciding Not to Litigate: A Comparison of Litigation, Arbitration and Mediation - AAA Handbook on Mediation - Third Edition

The authors teach at the College of Business Administration, California State University, in Sacramento, where Donald L. Carper is a Professor Emeritus of legal studies in business and conflict management, and John B. LaRocco is a Professor of law. Prof. Carper is also an arbitrator and mediator and Prof. LaRocco is a labor arbitrator, mediator and fact finder. He serves on the American Arbitration Association’s labor panel

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AAA Handbook on Mediation - Third Edition

I. Introduction

Why one might choose to use an alternative dispute resolution (ADR) process to resolve a legal problem is an interesting question, but it is not the focus of this article. Instead, it focuses on the fundamental attributes of litigation and explores whether these attributes are present in private arbitration and mediation. The purpose is to help people make an informed decision about the process they wish to use to resolve their dispute. This comparison also could help designers of ADR systems identify and preserve attributes desired by parties and jettison those that are not.
We grew up when litigation was the main avenue of dispute resolution. Arbitration was not then accepted by the courts. The attitude of the time toward righting wrongs was to litigate. The phrase “sue the bastard” was in common use.

Deciding whether to litigate, arbitrate, or mediate requires an understanding of three dispute resolution processes. The authors begin with the major characteristics of litigation, and then discuss whether these characteristics are present in arbitration and mediation, and if not, how these processes differ.