ADR Suitability Questionnaire

[Questions to Assess Litigation v. Arbitration]
[Return to Introduction]

Questions To Assess ADR Suitability Regarding Consensual ADR

In order to provide a benchmark against which to compare your analysis, indicate here by selecting the (a) or (b) choice below whether your instinct, unaided by any analysis, tells you that settlement of this dispute:

a. is inevitable, even if only on the courthouse steps.
b. just isn't foreseeable at any stage.

This section contains 30 questions.

Players & Their Relationships

1. The parties involved are:

a. knowledgeable about ADR and its benefits.
b. not involved in and unsophisticated about ADR.

2. Apart from the dispute, the actual or potential business relationships or other business interests between the two sides:

a. are significant, and likely to stay that way.
b. do not matter much, if at all.

Consider how your counterpart would answer this question.

3. The people conducting the dispute:

a. on both sides have the authority and confidence needed to resolve it.
b. on at least one side fear that any move to settle on their part will be second-guessed by their superiors.

4. Are the parties' decision-makers insufficiently familiar with, or unrealistic about, the facts or merits of the dispute, so that a presentation by counsel might promote a better understanding of the issues or a more realistic case assessment?

a. yes
b. no

5. Do you believe the other side is genuinely interested in compromise?

a. yes
b. no

6. At this point, the general attitude of each side toward the other is:

a. relatively objective.
b. one of deep-seated hostility, contempt and distrust.

Consider how your counterpart would answer this question.

7. Would a non-binding evaluation from a skilled neutral help produce a more realistic assessment from either side?

a. yes
b. no*

An evaluative form of consensual ADR such as the mini-trial, early neutral evaluation or evaluative mediation is an option.

8. Would a mediator or other neutral facilitator help diffuse hostility between lawyers or parties?

a. yes
b. no

9. In terms of their financial resources, business sophistication, litigation experience, etc., the two sides are:

a. substantially comparable.
b. so disparate that one side may gain advantage over the other outside the civil justice system.

10. Are there multiple parties involved that could escalate the time and costs of litigation?

a. yes
b. no*

Jurisdiction

11. The jurisdiction in which the dispute is pending:

a. requires some form of non-binding ADR in this type of case.
b. is indifferent to ADR.

Interests Parties Are Advancing

12. A speedy and inexpensive resolution of the dispute is:

a. important to both parties.
b. either unimportant to both parties or one party is interested in delaying resolution.

13. Publicity concerning the dispute:

a. should be avoided by both sides.
b. will benefit one side or the other.

14. The transaction costs of pursuing litigation, when compared to what either side can realistically expect to recover or save, are:

a. disproportionately large.
b. small, given what's at stake.

The term "transaction costs" includes legal fees and disbursements. It also includes indirect business disruption costs, such as diversion of the time and attention of executives, the potential effect of adverse publicity, and the likely effects on relationships with third parties.

15. Confidentiality is an important concern for at least one party.

a. yes
b. no

16. Does the dispute present risks for either side of damage to reputation, public rejection of a product, potentially greater governmental regulation or oversight, or some comparable risk?

a. yes
b. no*

17. Do parties want to reach a business-oriented resolution rather than a win-lose outcome on money damages only?

a. yes
b. no

18. When assessing discovery needs,

a. both sides wish to avoid burdensome or intrusive full-blown court discovery.
b. one side wishes to use court discovery processes to procure documents or information that the opponent is withholding.

Issues Involved & Outcomes Sought

19. The issues involved in the dispute are:

a. sensitive, involving senior management, disclosure of trade secrets, production of sensitive documents, etc.
b. pedestrian, unlikely to raise such concerns.

20. The issues involved in the dispute are:

a. highly technical or complex.
b. easily grasped.

21. The central issues in this dispute are factual,

a. but do not turn on the credibility of key witnesses.
b. and turn on the credibility of key witnesses.*

22. Is a resolution that a court could not grant (e.g., modification of relations between the parties) needed by:

a. at least one side and perhaps both sides?
b. neither side?

23. Does either side have anything significant left to put on the table to induce settlement?

a. yes
b. no

24. The parties wish to control the outcome of the dispute by avoiding binding adjudication and the attendant risk of loss.

a. yes
b. no

25. Inflicting significant damage on the other side or securing public vindication is:

a. of no interest to either side.
b. a significant objective for at least one side.

26. If the dispute did go to court and you "won,"

a. a low-profile, confidential ADR process may reduce the incidence of future claims.
b. a victory in court may deter filing of future claims.

27. The dispute is one of a substantial number of pending or potential claims stemming from the same fact pattern or event, and you believe that:

a. your engaging in a lower profile, more confidential approach will reduce the incidence of claims.
b. by lowering the cost and risks of asserting a claim in ADR, claim volume is likely to increase.

28. Neither side needs a decisive legal precedent, a permanent injunction, or other court-administered remedy.

a. yes
b. no

29. The likelihood that this case can be disposed of by a prompt dispositive motion is:

a. speculative.
b. very likely.

30. The chances of winning at trial are:

a. unknown or uncertain.
b. we will win, unquestionably.

Assess Responses

Now that you have completed all of the questions, write the total number that you answered.

a. ________ b. ________

It should now be possible to gain a sense of the potential of the dispute for resolution by ADR. A predominance of (a) answers normally indicates a promising candidate for resolution by consensual ADR. A predominance of (b) answers normally indicates that arbitration or litigation is appropriate. See Questions to Assess Litigation v. Arbitration and Features of Litigation vs. Arbitration.

Watch for Compelling Priorities

One should avoid attaching too great a significance to numerical scores. In some cases, a single answer may reflect such a compelling priority for, or such an overwhelming obstacle to, ADR as to outweigh several counter-indicative answers. The ADR assessment checklist will identify and quantify many of the factors that bear on suitability for ADR, but the weight to be given to these factors must be assessed individually in light of experience, good judgment and common sense.

Are Non-Assessment Factors Operating?

Finally, you should consider the intuitive question asked at the outset, as to whether settlement of this dispute is inevitable and foreseeable. In most cases, your reasoned responses will correlate with your intuitive response. Where they do not, you should consider whether the intuitive response reflects factors or considerations not in the screen but that nonetheless bear on the suitability of the dispute for resolution by ADR.

Reassess as Litigation Progresses.

The answers to some of the questions may well shift as the litigation process unfolds. If your conclusion at the outset is not to engage in ADR, or if at that juncture the other side is not interested in ADR, the exercise should be repeated as litigation progresses.

[Questions to Assess Litigation v. Arbitration]
[Return to Introduction]