Primary dispute resolution

At a recent seminar that I conducted, I asked the participants what their biggest obstacle was in resolving disputes.  They quickly identified the primary reason, borrowing a line from the movie “Cool Hand Luke”: Failure to communicate.  So I asked them what the best way to solve that problem was.  Did they say file a lawsuit?  Of course not.  Better communication is the primary solution.  Litigation is the last resort. 

Why then are mediation and arbitration called “alternate dispute resolution”?  The vast majority of disputes that give rise to lawsuits are settled short of trial, either by direct negotiation or by mediation.  So in what sense of the word are mediation and arbitration “alternates”?  It is time we start a movement to call them what they really are — the primary means of dispute resolution.  Who wants to join me in referring to mediation and arbitration as primary dispute resolution from now on?