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Overview of Alternative Dispute Resolution

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Alternative Dispute Resolution:
The term Alternative Dispute Resolution refers to procedures for settling disputes by means other than litigation; e.g., by negotiation, arbitration or mediation, which are usually less costly and more expeditious than litigation. In addition to these three branches which we will focus on in this course, many include processes such as “mini-trials” (sometimes used as another term for arbitration, but sometimes used to identify a somewhat different process) and “umpiring” under the heading of “alternative dispute resolution.” 

Strictly speaking, “negotiation” in the relevant sense, is the back-and-forth process by which parties reach an agreement. This may take place between parties who have no current conflict or, most relevant to our studies, between parties currently at odds.

Mediation is a process by which an independent, neutral party (called the “mediator”) is brought into a dispute in order to help the parties involved arrive at a mutually satisfactory agreement. The stated goal is not always reached, and (unlike an arbitrator) the mediator does not have any power to compel the parties to take any particular actions. Mediation is a private process and takes place outside the boundaries of the court system.

Arbitration, in many states governed by the Uniform Arbitration Act, is a process by which an independent, neutral party or parties (called the “arbitrator(s)”) renders a decision on a case which is binding as to the parties involved. Arbitration may be entered into voluntarily, or it may be made compulsory if a statute requires it. In addition, parties may enter into contracts whereby future conflicts related to the contract are agreed to be settled by arbitration, to the exclusion of filing suit in court.

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.

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