ALTERNATIVE DISPUTE Resolution (‘ADR’) has developed alongside litigation and arbitration as a means of resolving commercial disputes in accordance with procedures aimed at avoiding the inherent costs and delays of the adversarial process. Those costs and delays have been felt most acutely in the United States, where pretrial obligations are the most burdensome. The United States has accordingly led the way in developing innovative ways of keeping parties away from the courts and arbitration. As Lord Goff has observed extrajudicially: 1
We must never forget how strong the economic pressures are in the United States which have led to the birth of this new phenomenon. In litigation, the costs of legal representation are very high; and, even if a litigant is successful, his costs are not recoverable from the other party. There is the burden of a system of oral discovery, which can be protracted to intolerable lengths. There are over-crowded lists, leading to great delays in cases coming on for trial. Some at least of these pressures exist in the case of traditional arbitration as well as in litigation. All these, and other things, have pointed to the need for some alternative method of disposing of disputes, if that can be found.