Joel E. Davidson is the former Senior Vice President and Deputy General Counsel at PaineWebber, (now UBS), and past Senior Counsel at Prudential Securities. He earned a J.D. from Fordham Law School. Mr. Davidson is a member of the Board of Editors of Securities Arbitration Commentator and has written widely on securities arbitration and mediation.
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.