ADR Myths Lawyers Rarely Talk About

Introduction: Why ADR Needs an Honest Conversation

Over the past two decades, Alternative Dispute Resolution (ADR) has been widely promoted as the cure-all for the perceived failures of litigation. Courts encourage it. Policymakers endorse it and reflect overwhelming interest in mediation and arbitration as faster, cheaper, and friendlier alternatives to court.

Yet, as lawyers with real-world experience across disputes, jurisdictions, and clients, we must say what is rarely said out loud:

👉 ADR is not perfect, not universal, and not always cheaper, faster, or fairer.

While ADR plays a vital role in modern justice systems, it has also been surrounded by myths—oversimplified claims that obscure its limitations and, in some cases, mislead litigants.

This article exposes the ADR myths lawyers rarely talk about, drawing on practice experience, judicial decisions, comparative jurisprudence, and academic critique, to present a balanced, and trustworthy analysis.

What Is ADR? (Brief Context)

ADR refers to methods of resolving disputes outside traditional court litigation, commonly including:

Mediation
Arbitration
Conciliation
Negotiation

ADR emphasizes flexibility, confidentiality, and party autonomy. These features are valuable—but they also give rise to misunderstandings.

Myth 1: ADR Is Always Cheaper Than Litigation

The Truth: ADR Is Often Cheaper—but Not Always

One of the most common and most misleading assumptions is that ADR automatically saves money.

In reality:

Mediation is usually inexpensive
Arbitration, especially complex commercial arbitration, can be as expensive as litigation—or more

Costs in arbitration may include:

Arbitrators’ professional fees
Administrative institution fees
Venue and logistics costs
Expert witnesses

Professor Gary Born notes that international arbitration can rival litigation in cost when poorly managed.

📌 Reality check: ADR can reduce costs—but cost efficiency depends on the dispute type, process chosen, and party behavior.

Myth 2: ADR Is Always Faster Than Court Litigation

The Truth: Speed Depends on Cooperation and Case Complexity

ADR is marketed as “fast justice.” Often, that is true. But not always.

Arbitration may be delayed by:

Scheduling conflicts
Extensive submissions
Multiple arbitrators
Jurisdictional challenges

In some jurisdictions, court-annexed ADR is slowed by the same congestion affecting courts.

In Halsey v. Milton Keynes NHS Trust (2004), the court encouraged ADR but acknowledged that it is not appropriate—or effective—in every case.

📌 Reality check: ADR can be fast, but it is not automatically fast.

Myth 3: ADR Is Always Fairer Than Litigation

The Truth: Fairness Depends on Power Balance

ADR assumes parties negotiate as equals. This assumption is dangerous.

Where there is:

Employer vs employee
Corporation vs consumer
State vs citizen

ADR may pressure weaker parties into unfair compromise.

Legal scholar Owen Fiss, in Against Settlement, warned that settlement-driven processes may sacrifice justice for efficiency, especially where power is unequal.

Courts, by contrast, provide:

Procedural safeguards
Judicial oversight
Rules of evidence

📌 Reality check: ADR can entrench inequality if power imbalance is ignored.

Myth 4: ADR Always Preserves Relationships

The Truth: ADR Can Also Damage Relationships

ADR is often praised as “relationship-saving.” While mediation can indeed reduce hostility, this is not guaranteed.

ADR can:

Force unwilling parties into negotiation
Reopen emotional wounds
Create resentment when outcomes feel coerced

In some family and commercial disputes, poorly managed ADR worsens conflict rather than resolving it.

📌 Reality check: ADR can preserve relationships—but only when parties are willing and supported properly.

Myth 5: ADR Outcomes Are Always Binding and Enforceable

The Truth: Not All ADR Outcomes Carry the Same Legal Weight

Mediation settlements require enforcement as contracts
Arbitration awards are binding but subject to limited challenges
Negotiated agreements may collapse without compliance mechanisms

Litigation judgments, by contrast, are enforceable through state authority.

As emphasized in R v. Sussex Justices (1924), courts represent the visible power of justice.

📌 Reality check: ADR outcomes rely heavily on voluntary compliance.

Myth 6: Courts Prefer ADR Because It Is Always Better

The Truth: Courts Promote ADR for Efficiency—Not Supremacy

Courts encourage ADR to:

Reduce caseloads
Save judicial resources
Promote settlement

But courts do not consider ADR superior in all cases.

In Dunnett v. Railtrack Plc (2002), the court penalized unreasonable refusal of ADR—but did not suggest ADR should replace litigation entirely.

📌 Reality check: Courts see ADR as a complement, not a replacement.

Myth 7: ADR Eliminates the Need for Lawyers

The Truth: ADR Still Requires Legal Expertise

Another persistent myth is that ADR is “lawyer-free.”

In practice:

Legal advice shapes negotiation positions
Lawyers draft enforceable settlement terms
Counsel protect clients from unfair concessions

Unrepresented parties in ADR risk signing agreements they do not fully understand.

📌 Reality check: ADR without legal guidance can be risky.

Myth 8: Arbitration Is Private and Confidential in All Cases

The Truth: Confidentiality Is Not Absolute

While ADR is generally private:

Enforcement proceedings may become public
Challenges to awards occur in open court
Some institutional rules allow disclosure

In Scott v. Scott (1913), courts reaffirmed open justice—even when privacy is preferred.

📌 Reality check: ADR confidentiality has legal limits.

Myth 9: ADR Is Always Voluntary

The Truth: ADR Is Sometimes Mandatory

In many jurisdictions:

Contracts mandate arbitration
Courts require pre-trial mediation
Refusal to attempt ADR attracts cost sanctions

This raises concerns about consent, particularly where ADR clauses are buried in standard contracts.

📌 Reality check: Not all ADR is truly voluntary.

Myth 10: ADR Is Suitable for Every Type of Dispute

The Truth: Some Disputes Belong in Court

ADR is inappropriate where:

Constitutional interpretation is needed
Public interest is involved
Precedent must be set
Criminal or regulatory issues arise

In Brown v. Board of Education (1954), mediation could never have achieved systemic justice.

📌 Reality check: Some disputes require public adjudication.

Myth 11: ADR Always Promotes Access to Justice

The Truth: Cost Savings Do Not Equal Justice

ADR can improve access to justice—but not automatically.

Problems include:

Arbitrator fees excluding the poor
Confidential settlements hiding wrongdoing
Unequal bargaining power

Professor Mauro Cappelletti warned that access to justice is not just about speed or cost, but about fairness and accountability.

📌 Reality check: Access to justice requires more than ADR.

Why These Myths Persist

ADR myths persist because:

Efficiency is attractive
Courts are congested
Settlement culture dominates
Marketing overshadows nuance

As lawyers, we have a duty to replace slogans with substance.

ADR vs Litigation: The Honest Take

Issue	ADR	Litigation
Cost	Often lower	Often higher
Speed	Often faster	Slower
Fairness	Depends on balance	Procedurally protected
Precedent	None	Yes
Transparency	Private	Public
Enforcement	Limited	Strong

Conclusion: ADR Is Powerful—But Not Perfect

From professional experience, judicial authority, and academic critique, one conclusion is unavoidable:

👉 ADR is a valuable tool, not a universal solution.

The danger lies not in ADR itself, but in unquestioned faith in its myths.

As lawyers, our duty is not to sell efficiency at the expense of justice, but to guide clients toward the right process for the right dispute.

True justice requires choice, balance, and honesty—not slogans.

Frequently Asked Questions

Is ADR better than litigation?
Sometimes—but not always.

What is the biggest myth about ADR?
That it is always cheaper, faster, and fairer.

Should lawyers always recommend ADR?
No. Lawyers must recommend what best protects the client’s rights.

Legal and Academic Authorities Referenced

Halsey v. Milton Keynes NHS Trust (2004)
Dunnett v. Railtrack Plc (2002)
Brown v. Board of Education (1954)
Scott v. Scott (1913)
R v. Sussex Justices (1924)
Lon L. Fuller – The Forms and Limits of Adjudication
Owen Fiss – Against Settlement
Mauro Cappelletti – Access to Justice
Gary Born – International Commercial Arbitration