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Abstract

As 1990 approaches, commercial litigation has streamlined its processes to meet its critics.It is also providing some useful controls over, and lessons for, arbitration and ’alternative dispute resolution’ (ADR), which, although promising, have their own potential for delay and manipulation. Interestingly, some courts have also moved to adapt for their own purposes some of the so-called alternatives for non-judicial resolution of disputes, such as delegating factual issues to arbitrators or referees, and also compelling litigants to explore settlement through forms of ADR such as mediation. As a result, ADR should no longer be viewed as always being a voluntary, non-binding and confidential process, independent of the court system and having no impact on subsequent litigation should negotiations fail. Arbitration and ADR are games played in the ’shadow of the law’, and in the shadow of litigation, and cannot work well without a strong court system. There is also a need for lawyers who know how to use the various processes well, so that they complement each other.

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