Originally from Dispute Resolution Journal

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This article addresses itself to transactional lawyers who represent clients embarking on the negotiation of contracts for new ventures or their implementation. The subject of alternative dispute resolution (ADR) has largely been avoided in such contracts apart from those form agreements created and distributed under sponsorship of the Ameri-can Institute of Architects (AIA), which in its 1997 edition of Standard Form of Agreement between Owner & Architect (AIA Form B141) and General Conditions of the Contract for Construction (AIA Form A201) provided for mediation as a condition precedent to arbitration.

The use of ADR has been avoided in the custom contract drafting process because parties and their counsel negotiating a new relationship are reluctant to introduce potentially controversial or disruptive issues that would change the flow of a harmonious agreement by the jarring concept of break-up. However, the lawyer negotiating and preparing a contract has the first and most significant opportunity for objectively considering with a client the choices available to resolve possible disputes, including the option to litigate.

My observations, over the past 10 years, spring from varied experiences. I write, first, as a transactional real estate lawyer representing clients embarking upon myriad real estate ventures, as a certified mediator in federal court, as arbitrator and mediator selected from neutral panels of the American Arbitration Association (AAA), and as a neutral panelist in the New Jersey Statewide Roster of Neutrals, published by the New Jersey Superior Court.

Lawyers, by tradition and classic law school curriculum, have long considered dispute resolution by means outside of the state and federal courts to be a thing apart—a secondary method to litigation in the search and effort to resolve disputes. The initial message, then, is to urge upon the bar in general, and upon transactional lawyers in particular, the understanding and belief that all techniques for dispute resolution are truly alternative methods to one another. Each method should be considered in parity. A judgment as to the direction toward which dispute resolution is to be sought, should ideally be made ad hoc with due regard to each vehicle and technique for its strengths and weaknesses in the interest of the client in the given situation.

A clarification of the terms “dispute resolution” and “alternative dispute resolution” is necessary. The former is the larger concept, for it includes all techniques and avenues of resolving disputes. The latter, “alternative dispute resolution,” is an unfortunate term, for it is less than precise in meaning and it connotes something less legitimate in stature than traditional litigation. The effect has been to vest in only a single technique, litigation, an aura of suitability, conferring upon litigation an unstated presumption of superiority over other dispute resolution techniques.