Mediation as a Means of Docket Management, or How I Learned to Stop Worrying and Love ADR

Alternative dispute resolution (ADR) is increasing in use in courts at all levels.  A development has been the active encouragement of the use of mediated settlements as opposed to merely making it available to the parties.  The U.S. District Court for the Western District of New York has an ADR Program in which the parties are initially referred to a mediator to explore ADR possibilities.  The FAA has a statutory commitment to ADR at the administrative level for the resolution of government contract claims.  

Mediation may be with an independent third party neutral rather than  settlement discussions held by the presiding judge in the case. Judges, however, can offer their services as mediators.  The judge, as is the case with the FAA, may be a neutral party recused from the case altogether.  In those instances, the parties have the benefit of the judge's experience without fear of prejudicing a decided outcome.  In fact, one type of ADR technique is the early neutral evaluation (ENE) in which the neutral (often a judge) provides the parties with an analysis of the strengths and weaknesses of their respective positions.

ADR possesses many advantages over protracted litigation.  The biggest being time.   Courts have scarce resources.  One law review article discusses the scarcity of resources among  Federal appellate courts to hold oral arguments and decide cases.  In a mediation, the parties, with the assistance of a neutral, may establish a rigorous schedule to exchange information.  They may then quickly enter into discussions to attempt to resolve the matter.  The case can be managed based on the needs of the parties rather than on the available resources of the court.  Ultimately, agreed upon settlements mean less decisions to write, and free up valuable resources for those that must be decided.