Litigation vs ADR: When Litigation Is Better Than ADR

Introduction: Why This Question Matters More Than Ever

Over the last two decades, Alternative Dispute Resolution (ADR) has been promoted worldwide as a faster, cheaper, and friendlier alternative to litigation. Courts encourage it. Governments support it. Lawyers recommend it. Google searches reflect it.

Yet, as experienced legal practitioners, we must be honest with the public and with ourselves:

👉 ADR is not always the better option.

While mediation, arbitration, and negotiation can save time and money, there are critical situations where litigation is not only preferable—but necessary. In fact, choosing ADR in the wrong circumstances can weaken rights, delay justice, or even entrench injustice.

This article answers a highly searched but under-explored question:
When is litigation better than ADR?

Drawing from professional experience, judicial authorities, comparative jurisprudence, and academic scholarship, we explain when the courtroom remains the most effective and appropriate forum for resolving disputes.

Understanding the Core Difference

Litigation: A Rights-Based Process

Litigation is:

Formal
Rule-based
Public
Binding
Enforceable by state power

It is designed to determine legal rights, interpret laws, and create precedent.

ADR: An Interest-Based Process

ADR focuses on:

Compromise
Flexibility
Party autonomy
Confidentiality

It is excellent for settlement—but not always for justice.

As Lon L. Fuller observed, adjudication (litigation) is uniquely suited for disputes involving clear legal rights and public norms, not merely private interests.

1. When a Binding Legal Precedent Is Needed

Courts Create Law—ADR Does Not

One of the clearest situations where litigation is superior is where a dispute raises:

Novel legal questions
Constitutional interpretation
Conflicting statutory provisions

ADR outcomes are private and non-precedential. They do not clarify the law.

In Marbury v. Madison (1803), litigation—not negotiation—established the doctrine of judicial review, shaping constitutional law globally.

📌 Why litigation is better here:
Only courts can develop, interpret, and harmonize the law for society at large.

2. Public Interest and Constitutional Matters

ADR Cannot Replace Public Accountability

Disputes involving:

Human rights
Electoral processes
Environmental protection
Government accountability

are ill-suited for ADR.

In Brown v. Board of Education (1954), mediation would never have dismantled segregation. Litigation was necessary to enforce constitutional equality.

Public interest litigation requires:

Transparency
Judicial authority
Binding enforcement

ADR operates behind closed doors and lacks democratic legitimacy in such cases.

3. Where There Is a Serious Power Imbalance

ADR Assumes Equality—Litigation Corrects Inequality

ADR works best when parties have relatively equal bargaining power. Where there is:

Employer vs employee
Corporation vs consumer
State vs citizen

ADR may quietly entrench injustice.

Courts exist to level the playing field through:

Procedural protections
Rules of evidence
Judicial oversight

As Professor Owen Fiss argued, settlement (including ADR) may sacrifice justice where power is unequal.

📌 Litigation is better when protection, not compromise, is needed.

4. When One Party Refuses to Cooperate in Good Faith

ADR Depends on Willingness

ADR fails when:

A party refuses to participate sincerely
One side uses delay as a tactic
There is deliberate non-disclosure

Courts, unlike ADR forums, can:

Compel attendance
Order disclosure
Sanction misconduct

In Halsey v. Milton Keynes NHS Trust (2004), while promoting ADR, the court recognized that ADR is inappropriate where a party is unwilling to engage genuinely.

📌 Litigation provides coercive authority where cooperation is absent.

5. When Urgent or Interim Relief Is Required

ADR Cannot Always Act Fast Enough

Certain disputes demand:

Injunctions
Freezing orders
Preservation of assets
Immediate restraining orders

Only courts possess the authority to grant urgent, enforceable interim relief.

For example:

Intellectual property infringement
Domestic violence protection
Breach of fiduciary duty

ADR may take time to convene. Courts act immediately.

6. Where Enforcement Power Is Critical

A Right Without Enforcement Is Empty

ADR decisions—especially mediation outcomes—depend heavily on voluntary compliance.

Court judgments, by contrast, are enforceable through:

Garnishment
Seizure
Contempt proceedings
State enforcement mechanisms

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

📌 Litigation is superior when compliance is doubtful.

7. Criminal and Quasi-Criminal Matters

Some Disputes Cannot Be “Settled”

Criminal cases and regulatory enforcement actions cannot be resolved through ADR because:

Society, not just individuals, is affected
Deterrence is required
Public condemnation is necessary

Even in civil matters with criminal elements—fraud, corruption, serious misconduct—litigation ensures accountability.

ADR cannot replace punishment, deterrence, or public justice.

8. When Legal Rights Must Be Vindicated, Not Bargained Away

ADR Encourages Compromise—Sometimes at a Cost

ADR often requires concession. But some rights:

Are non-negotiable
Require affirmation, not settlement

Examples include:

Discrimination claims
Freedom of expression cases
Fundamental contract breaches

As lawyers, we have seen situations where ADR pressured weaker parties to accept unfair outcomes for the sake of “peace.”

Litigation affirms rights—even when settlement is uncomfortable.

9. Where Transparency and Public Scrutiny Are Necessary

Open Justice Serves Society

ADR is confidential. Litigation is public.

In cases involving:

Government wrongdoing
Corporate misconduct
Professional malpractice

public scrutiny is essential.

In Scott v. Scott (1913), the court emphasized that open justice is a cornerstone of democratic society, even when uncomfortable.

📌 Litigation exposes wrongdoing; ADR often hides it.

10. When ADR Has Already Failed

Litigation as the Final Arbiter

ADR is often attempted first. When it fails:

Litigation becomes inevitable
Costs of delay increase
Rights remain unresolved

Courts exist as the ultimate forum of justice, not merely an alternative.

As judges frequently observe, ADR supplements—but does not replace—the judicial system.

Academic Perspectives Supporting Litigation

Several respected scholars caution against over-romanticizing ADR:

Owen Fiss: warned that settlement may undermine justice
Lon L. Fuller: emphasized adjudication’s role in norm-setting
Judith Resnik: highlighted the democratic value of courts

Their collective work reinforces a simple truth:
Efficiency must never trump justice.

Litigation vs ADR: When Litigation Wins (Summary Table)

Situation	Better Option
Constitutional questions	Litigation
Public interest disputes	Litigation
Power imbalance	Litigation
Urgent injunctive relief	Litigation
Enforcement concerns	Litigation
Criminal or regulatory matters	Litigation
Need for precedent	Litigation
ADR failure	Litigation

Conclusion: Choosing Justice, Not Just Efficiency

From professional experience, judicial authority, and academic insight, one conclusion stands firm:

👉 ADR is valuable—but litigation remains indispensable.

The courtroom is not obsolete. It is foundational.

As lawyers, our duty is not to promote ADR blindly, but to recommend the right forum for the right dispute. Sometimes that forum is mediation. Other times, it must be a judge, a public hearing, and a binding judgment.

In the pursuit of justice, litigation is not the enemy of efficiency—it is the guardian of rights.

Frequently Asked Questions

Is litigation always worse than ADR?
No. Litigation is superior in public interest, rights-based, and enforcement-heavy disputes.

Why do courts still exist if ADR is cheaper?
Because justice requires authority, precedent, and public accountability.

Can ADR replace litigation entirely?
No. ADR complements litigation but cannot replace it.

Legal and Academic Authorities Referenced

Halsey v. Milton Keynes NHS Trust (2004)
Brown v. Board of Education (1954)
Marbury v. Madison (1803)
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
Judith Resnik – Managerial Judges