Originally from Alternatives to the High Cost of Litigation

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The alternative dispute resolution revolution is certainly present in the U.S legal system. Many legal disputes are subject to mandatory mediation, whether by contract, statute, court rule, or court order. See, e.g., Ben Barlow, “Divorce Child Custody Mediation: In Order to Form a More Perfect Disunion?” 52 Cle. St. L. Rev. 499, (2004-2005) (discussing mandatory mediation in the context of family cases); Michael Z. Green, “Proposing a New Paradigm for EEOC Enforcement after 35 Years: Outsourcing Charge Processing by Mandatory Mediation,” 105 Dick. L. Rev. 305 (2001) (discussing mandatory mediation of employment claims).

Arbitration agreements are “ubiquitous” in consumer contracts. See Nicole A. Rossini, “Lost in Dicta: The Curious Case of Nonstatutory Grounds of Vacatur in an Era of Ubiquitous Consumer Arbitration,” 52 Suffolk L. Rev. 343, 346 (2019) (describing the rise of mediation agreements in consumer contracts), and, to a lesser extent, employment contracts. See Stephen L. Hayford, et al., “Employment Arbitration at the Crossroads: An Assessment and Call for Action,” 2014 J. Disp. Resol. 255, 257-59 (2015) (discussing arbitration in employment cases).

Lawyers and judges today are familiar with litigation alternatives and may suggest them on a voluntary basis as well.