The Evolution of VE-ADR
By Ed Martinet – Key West, Florida…..
Alternative Dispute Resolution has been very effective over the past several decades by aiding the
legal system with an alternative method of resolution outside of the court
system. While there are many approaches to ADR, all can say that they are
frequently preferable to full blown litigation.
However, in some areas of the law, the use of conventional ADR has become so “standardized”
that it has lost the effectiveness that most clients and attorneys initially embraced.
Many cases still take too much time and money before a settlement is obtained.
So let’s look at what has happened over the last 30 years in the area of Construction Defect
(CD) litigation. When CD cases first came into existence the standard court
based model was cumbersome, inefficient, and expensive yet rarely provided a
fair and equitable resolution. The CD industry at that time, primarily counsel and
insurance carriers, modified the then prevalent ADR model to fit the needs of
this complex litigation. This fundamental ADR model was developed within the
San Diego County judicial system and became the standard model. Variations have
been generated and continue to develop across the country and have been proven
While ADR is still an effective method of dealing with complex CD litigation, why has the
development of more advanced ADR methods been so slow in emerging? The answer
is both complex and simple:
- Most people would just as soon stick with a system or process that they understand
and that does not require continuing education and creativity.
- Economic incentives of the existing process restrict new “real” thought.
- It takes a good game plan, time and continual effort to turn a large ship around
to a more effective course.
The industry has made some important and successful changes, and it should be applauded for
those. If we look broadly at legislation that has been proposed and passed in
various states, we see that while the initial concept was thoughtful and
creative, the outcome has been generally less than desirable. Then the
inevitable years of legal decisions and appeals prolong a final decision on
what the law really means.
So what is VE-ADR, how does it differ from conventional ADR?
VE-ADR is an improvement to existing ADR, it provides for a shorter time frame to
resolution, a more efficient utilization of resources. VE-ADR also addresses
the big picture of total litigation expense for all parties, not just one side
or the other.
How VE-ADR addresses these, and many more issues, will be addressed in upcoming blogs on
Your comments and thoughts are encouraged and appreciated.