Alternative Dispute Resolution
By Walter Toomey
Introductory Essay for the Unacquainted Client.
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
It has been against this backdrop that the Alternative Dispute
Resolution (“A.D.R.”) movement has developed and flourished.
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.”
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. 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. In 1926, the American Arbitration Association was established as the first private agency serving as a clearinghouse for professional mediators and arbitrators.
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.
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.,
Indeed, by the end of the 1980’s, over 75% of all states had
passed some form of community dispute or mediation legislation.
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. 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. 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. 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:
- 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
- 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.
- Conciliation is often used interchangeably with mediation, but
generally conciliation involves a less formal process or a process
involving less participation by the neutral.
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.
- 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.
- 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
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.
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.
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
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.
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.
 See generally Robert G. Bone, Mapping the Boundaries of a Dispute: Conceptions of Ideal Lawsuit Structure From the Field Code to the Federal Rules, 89 Colum. L. Rev. 1, 3 (1989).
 Terrence C. Downes, Alternative Dispute Resolution, theAdvocate: The Suffolk Univ. Law School Journal, Volume 23, No. 1, P. 37, Fall, 1992.
 Terrence C. Downes, Alternative Dispute Resolution, theAdvocate: The Suffolk Univ. Law School Journal, Volume 23, No. 1, P. 41, Fall, 1992.
 Asantehene Conflict Management Services, History of Alternative Dispute Resolution in the United States, available at < http://ourworld.cs.com/at1948/History%20Of%20Alternative%20Dispute%20Resolution.htm> (last visited January 25, 2005).
 GAMA – Global Arbitration and Mediation Association, History of Alternative Dispute Resolution, available at <http://www.gama.com/HTML/history.html> (last visited January 25, 2005).
 American Arbitration Association, About Us, available at < http://www.adr.org/About> (last visited January 25, 2005).
 National Center for Dispute Settlement, Our History, available at <http://www.ncdsusa.org/aboutus/our_history.php> (last visited January 25, 2005).
 VERA Institute of Justice, Mission and Origins, available at <http://www.vera.org/about/about_2.asp> (last visited January 25, 2005).
 Ralph R. Mabey, Expanding the Reach of Alternative Dispute Resolution in Bankruptcy: the Legal and Practical Bases for the Use of Mediation and Other Forms of ADR, 46 S.C. L. Rev. 1259, 1328 (1995).
 Leonard L. Riskin & James E. Westbrook, Dispute Resolution and Lawyers, 2-6 (Abridged Second Edition, 1998).
 Jack B. Weinstein, After Fifty Years of the Federal Rules of Civil Procedure: Are the Barriers to Justice Being Raised?, 137 U. Pa. L. Rev. 1901, 1909-10, (1989).