Why include negotiation in ADR? Don people negotiate in most cases?
Yes, parties and their lawyers do negotiate in most cases. Indeed, some 90% to 95% of cases settle before trial using some form of negotiation. ADR claims negotiation as one of its procedures because increasingly agreements are structured to require parties to negotiate as a precondition to going to litigation. In those agreements, it is only after a good-faith attempt to negotiate a settlement has failed that litigation may proceed. Where negotiation is used at the outset of a dispute, it is frequently successful, and most frequently involves less cost than litigation.
