Where is the line?

So I was catching up on disputes involving museums and I came across a slightly humorous story. In short, the American Museum of Natural History in NY sued American Airlines. Why? Because the airline allegedly destroyed barrels of "rare specimens" of fish that were shipped as luggage instead of cargo. The museum brought suit to recover the costs of collecting and transporting these rare fish from Africa.

This made me question as to whether there is a place for ADR in all situations. In this story, I can't say that ADR methods would lead to the most effective resolution. Have you dealt with airlines recently? In my opinion, they are not always the shining star in customer service or conflict resolution. I would imagine "threatening" them with mediation would not have the same effect as a threat of litigation. Furthermore, there seemed to be some factual disputes (the researcher allegedly checked the fish as luggage instead of cargo) - how is that solved outside of a courtroom? You don't have burdens of proof or a judge/jury that says you are "right" in ADR.

Therefore, my question is where is the line in deciding whether to pursue ADR or courtroom litigation? What does it take in a situation where you can see that negotiation, mediation, etc. will not only resolve the issue but give you a satisfactory resolution? And with industries/parties such as airlines that are relatively irritating to start with (costs, delays, grumpy workers, etc.), is there less willingness to employ ADR even if it could work? And what does that say about the future of ADR and conflict resolution specialists?

Are there specific factors you can think of that would indicate one path may be more effective than the other? Has anyone experienced the "opportunity" to choose between the two?

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Comment by Clfiton Pee on June 22, 2011 at 6:09pm: I think it make more sense for judges and attorneys to encourage use of ADR. I am not sure how to encourage it without some folks in leadership over those groups directing disputes in that direction.

Comment by Jonathan M. Hernandez on June 24, 2011 at 4:04am: Hey Nicole,

I'm working with an Airline Carrier as we speak, not in mediation, but I can say that mediation and airlines don't mix when it comes to collective bargaining agreements. There is one thing that airlines love to do, stall. There have been mediations that have yet to be settled after nearly five years. I do think however that binding Arbitration could be useful in this situation. If I was the museum of Natural History I would first, refrain from threating one of the most powerful airlines in the industry and instead I would propose that we mediate, or seek arbitration in order to avoid a media scandal exploiting American Airlines in the public eye. I can see the headlines now "American Airlines, lost in transmission." I think conflict resolution specialists should seek to secure there future especially in cases like these. The more mediation is popularized the better... what do you think?

Comment by Nicole Bohe on June 24, 2011 at 1:34pm: Clifton:

I agree that the push is most effective when it comes from those in leadership. I can see it as being a more practical for judges to push for ADR; attorneys may be hesitant to do so given that it may take away business from them.

Comment by Nicole Bohe on June 24, 2011 at 1:37pm: Jon:

Interesting comments. I laughed when you said they loved to stall - that is probably a common tactic for many big corporations. I agree that a popularity increase for mediation (or at least its techniques) would probably open the doors for a new variety of conflict resolution.

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