Overview of Alternative Dispute Resolution
Alternative Dispute Resolution:
The above terms have been provided concise definitions so that we may immediately begin our discussion of these three branches of alternative dispute resolution (“ADR”). Of course, the following chapters of this course will cover each of these in great detail. By the end, it will be clear to all that these terms cannot be pithily defined as they have been above. Nonetheless, even the reality TV show “Who Wants to Be a Millionaire?” begins with the easy material….
This chapter will not so heavily depend on court cases to exemplify, and elaborate on, the material under discussion. Instead, we will spend more time than usual examining hypotheticals, and reference scholarly works in order to further our understanding of how alternative dispute resolution works in the United States today. This is an ever-changing area of the law, and much of what we will cover goes beyond traditional notions of “law.”
EXAMPLE: After failing to succeed as an opera singer, Bo Bice decides to attend law school and become a lawyer. “I want to stand before judges and argue my case, just like Fatlock,” says Bo. After graduation, he begins work at the firm of Clarkson, Ruben, Barrino & Understone. During his first week, he is dismayed to attend three arbitration hearings and one mediation case with the partner who is responsible for training Mr. Bice. At lunch with one of the firm’s legal assistants, a National Paralegal College (NPC) graduate, Mr. Bice expresses his disappointment. “But Mr. Bice,” says the NPC graduate, “ADR saves our clients money, allows us to help a greater number of clients, and tends to result in reasonable outcomes. You’ll just have to learn to live with it, ’cause it’s here to stay!”
The hypothetical is certainly not far from a discussion some paralegals might have with newly graduated lawyers. Most law schools cover mediation and arbitration in only a cursory manner, if at all. And negotiation is usually discussed only in the context of putting together agreements – not as a solution to conflicts.
It is important to note that state and federal courts have recently heard a number of challenges to the constitutionality of certain ADR programs. In Nevada, Wells Fargo challenged the statewide foreclosure mediation program as unconstitutional, because the court can block the foreclosure if the bank does not participate in mediation in good faith. In Delaware, the Delaware Coalition for Open Government is challenging the constitutionality of the Delaware Chancery Court’s arbitration program, where judges sit as private arbitrators instead of as public judges in certain cases.