Alternative Dispute Resolution (ADR) methods are increasingly relevant because of the increasing speed of the economy and the apparent advantages of frictionless way of conducting business by avoiding disputes. More and more businesses are focusing their energies and the entrepreneurial effort into moving forward rather than being held in a backward facing position which naturally diminishes their energies devoted to their present endeavors. Not only the difference in likely cost of a litigation, but the very relinquishing of one’s own responsibilities that follow after the dispute resolution is outsourced to a judicial system is quickly becoming unacceptable to many mature business entities. In other words, modern companies understand that the best chances of resolving a dispute quickly and efficiently lays with the disputants themselves who can, if they manage a dispute efficiently and properly, resolve it for a fraction of the cost and energy that it would take it by using the judicial system. This means that the modern companies understand that position based conflict resolution, such as litigation, are less of an adequate tool and that they will gain market advantage if they use interest based dispute resolution techniques such as mediation.
I feel ADR is much more present nowadays and it is almost becoming a mainstream way of resolving disputes in some industries or geographical regions. Younger managers and lawyers do not feel the fear of the unknown anymore and are more likely to steer their companies into direction of using ADR and mediation as their preferred choice for dispute resolution. The underlying change in the societies, that runs in parallel to the current economic crisis is the emergence of understanding on behalf of the clients that law might just not be the best way to settle one’s disputes or even to guide your business. If you use more ethics, based on recognition of all stakeholders interests, one will need less law, because as we all know, law is basically (over) codified set of ethical rules. One could say that law is ethics for dummies. Legal profession then built it in an overly complex system that is supposed to provide the answers to all questions. Hardly a good method to move ahead of the others in an ever faster economy. That is in my view why the current woes of the legal services industry are not only signs of the crisis of the prevailing legal professional business models but also point to the changing role of law.
I see the processes of embracing the ADR in general and mediation in particular gaining foothold in an ever bigger number of countries and think that the business communities and sometimes judiciary are likely to steer the rest of the global legal services into direction of social change that will feature increased use of the interest based dispute resolution techniques. Judge Blazevic of the High Commercial Court of the Republic of Croatia, and its past Chief Justice, said at the Croatian Arbitration and Conciliation Days in Zagreb recently that it is obvious to him that the rule of brute force is not acceptable to our societies nor should it remain present or allowed in the modern societies. Equally, he continued in a broad analogy, legal positioning should not anymore be seen as desirable ways of resolving disputes. As the brute force was substituted with limited role of law initially in the feudal systems, we are now entering into an epoch where the role of law is being checked against the role of private, interest based dispute resolution, based on the mutual responsibility and mutually articulated interests. It is becoming obvious that speeding up of the rate of social interactions, the increase in sheer volume of frequencies of transactions and relations are devaluing the role of the traditional legal instruments, especially in the field of dispute resolution techniques. Litigation is seen as unproductive tool by an increasing number of sophisticated users.