Alternative Dispute Resolution

By Walter Toomey

An Introductory Essay for the Unacquainted Client.

Introduction

            As the American adversarial judicial system has developed, various factors have contributed to the great delay and expense associated with the traditional model of resolving disputes through litigation in the courts.  Authorities concerned with this situation often cite as principle causes the under-funded and overburdened American court system and the tendency of an overabundance of American attorneys who overzealously advocate for their clients.[1]  It has been against this backdrop that the Alternative Dispute Resolution (“A.D.R.”) movement has developed and flourished.[2]  In an effort to solve the problems that traditional litigation presents, the A.D.R. movement seeks to provide more efficient mechanisms of resolving disputes.  Litigation should not be a one-size-fits-all tool and, as one legal scholar has noted, “just as there is a wide variety of types of problems which cause people to consult attorneys, so too should there be a wide variety of potential avenues available to address those problems.”[3]

History of Alternative Dispute Resolution

            Alternative dispute resolution is hardly a new concept.  Various groups, including the Catholic Church, have used mechanisms such as mediation for centuries.  Clergy often mediated family disputes as well as criminal and diplomatic legal matters.[4]  With the rise of governmental power in the United States, authority over many alternative dispute resolution mechanisms passed to more formal bodies under some form of government oversight.  Most variations of mediation were largely institutionalized in the 1900’s, and congress passed the Federal Arbitration Act and Railway Labor Act in the 1920’s.[5]  In 1926, the American Arbitration Association was established as the first private agency serving as a clearinghouse for professional mediators and arbitrators.[6]

Spurred to action by the social unrest and associated litigation boom of the 1960’s, the United States Department of Justice and the American Arbitration Association collaborated with the Ford and Rockefeller Foundations to establish the National Center for Dispute Settlement (“N.C.D.S.”) in 1968.  The N.C.D.S. helped pioneer the use of negotiation, mediation and arbitration to resolve community and public sector disputes.[7]  In the 1970’s, the role of community dispute resolution centers across the country expanded dramatically.  In response to the rapid growth and use of the community mediation centers to handle a variety of minor criminal and civil disputes, the VERA Institute of Justice conducted several studies on the effectiveness of the centers.  These studies concluded that the A.D.R. programs were not only successful, but also far more cost effective than traditional litigation.[4]^,[8]  Indeed, by the end of the 1980’s, over 75% of all states had passed some form of community dispute or mediation legislation.[4]

As Harvard President Derek Bok and Chief Justice Warren Burger made clear in the 1980’s, A.D.R. was not merely a convenient method for procuring an expedited litigation alternative, but a necessary movement to bring justice to the lower economic classes in the United States.[2]  In 1983, the National Institute for Dispute Resolution’s (“N.I.D.R.”) Ad Hoc Panel on Dispute Resolution and Public Policy published a report entitled “Paths to Justice: Major Public Policy Issues of Dispute Resolution”.  This report reviewed various A.D.R. issues and attempted to establish a standard lexicon for use in the growing A.D.R. field.[2]  Since that time, A.D.R. has continued to grow rapidly and the techniques and jargon put forth in the N.I.D.R. report have become fairly standard stock in the American attorney’s collection of dispute resolution resources.  

Basic Overview of Alternative Dispute Resolution Mechanisms and the Associated Lexicon

            Alternative dispute resolution has been described as a set of practices and techniques that aim (1) to permit legal disputes to be resolved outside the courts for the benefit of all disputants; (2) to reduce the cost of conventional litigation and the delays to which it is ordinarily subject; and (3) to prevent legal disputes that would otherwise likely be brought to the courts.[9]  The mechanisms of A.D.R. that are most frequently employed are negotiation, mediation, conciliation, arbitration, mediation-arbitration, mini-trials, summary jury trials and early neutral evaluation.  The particularities of any given factual situation may require, or favor, resolution through that mechanism which is best tailored to accommodate the parties involved and their desires.  Attorneys would therefore be well served to obtain a basic understanding and familiarity with each of the following A.D.R. techniques:

Negotiation - In negotiation, the parties seek to resolve their differences through discussion and reasoned arguments.  Parties may, or may not, have representation, and there is no neutral third party involved.  When a neutral third party facilitates the negotiation, the process is called mediation.[10]

Mediation - In mediation, the parties try to resolve their dispute with the help of a neutral third party who does not impose a solution upon them.  The end result of successful mediation is usually a written contract expressing the voluntary agreement the parties entered after reaching acceptable middle ground.[10]

Conciliation - Conciliation is often used interchangeably with mediation, but generally conciliation involves a less formal process or a process involving less participation by the neutral.[10]

Arbitration and “Court Annexed Arbitration” - In arbitration, the parties have agreed to present their case to a neutral third person they have selected to decide the case.  The arbitrator is normally selected for reputation and experience in the industry or area of the conflict.  The arbitrator will normally proceed according to the parties’ agreement, and so arbitration has the flexibility to be as formal or informal as the parties choose.  The states and the federal government have passed legislation to enforce arbitration decisions or regulations.  Many state and federal courts also require “court-annexed” arbitration for monetary claims under a certain amount, however the arbitration is not truly binding on the parties as they have the right to a trial de novo.[10]

Mediation-Arbitration - Mediation-arbitration, or “Med-Arb”, begins as mediation but will become arbitration if the parties fail to reach an agreement.  The neutral third party for arbitration may be the same person who facilitates the mediation, or different neutrals may be used for each part of the process.[10]

Mini-Trial - Mini-trials, or “structured settlement negotiations”, typically involve opposing parties arguing before a panel composed of a neutral subject matter expert and executives from each side of the dispute.  The neutral expert will often give his opinion of what the result of litigation would be, and then the decision-making executives from both sides will negotiate a settlement.  Sometimes the neutral expert’s opinion is binding on the parties, and sometimes the neutral will act as a mediator and/or a fact-finder.[10]

Summary Jury Trial - Summary jury trials are usually run like regular jury trials, but with a jury who has no authority to bind the parties.  The opposing parties argue their case before the jury, which is selected just as a normal jury would be, and the jury returns a non-binding verdict.  The parties then use this information to better understand their case and the potential outcome of litigation, which often encourages settlement.[10]

Early Neutral Evaluation - In early neutral evaluation, a neutral expert evaluates the strengths and weaknesses of each side’s case and presents that information to the parties.  The neutral may also help develop settlement terms or try to predict the outcome of litigation to encourage the parties to settle.[10]

The Multi-Door Courthouse - The multi-door courthouse refers to the concept of having many or all of these dispute resolution processes available at a courthouse on a standing basis.  This would allow parties to resolve their disputes in the most efficient manner possible with the help of a “screening clerk” who would direct the parties to the best resolution mechanism for their particular situation.[3]

Future Outlook and Conclusion

            While nobody denies A.D.R.’s ability to resolve issues, some scholars argue that the use of mandatory A.D.R. is not the solution to overcrowded court dockets.  Judge Jack Weinstein argues if cases are growing in the federal courts, so be it!  It is the duty of judges to resolve those disputes as public servants who pledge to uphold justice.  Judges, according to Weinstein, should not delegate away their responsibilities, but should seek to add judges or to add support staff.  In any event, Weinstein argues, requiring the parties to participate in A.D.R. against their will is essentially forcing parties to settle.  That is not the reason we have courts.[11]

            However, the fact remains that today in the United States there is an epidemic problem with backlogged court dockets due to copious litigation and financial considerations that result in judicial understaffing.  Reports have shown that while nobody is pleased with the tremendous delay and expense associated with litigation, the lower economic classes are most impacted by this situation.  As long as the judiciary is unable to expand at the pace of new filings, alternative dispute resolution will be necessary to ensure reasonably efficient access to justice in this country.