Alternative Dispute Resolution and Arbitration Outline

 
Dispute Resolution Processes Collaborative Outline
Summer 2010
 
CLASSES 1, 2, 3
 
I.                    Prof. Frank E.A. Sander (Harvard Law School), Varieties of Dispute Processing, Remarks Before The Pound Conference (1979)
 
a.       The Range of Available Alternatives
                                                               i.      Adjudication
 
b.      Criteria
                                                               i.      Nature of Dispute
                                                             ii.      Relationship Between Disputants
                                                            iii.      Amount in Dispute
                                                           iv.      Cost
                                                             v.      Speed
 
c.       Implications
                                                               i.      “What I am advocating for is a flexible and diverse panoply of dispute resolution processed with particular types of cases being assigned to differing processes.”**There are different options in one court house, you enter and have different options based on your case:
1.       Screening Clerk à 71
2.       Mediation à 72
3.       Arbitration à 73
4.       Etc…
                                                             ii.      “Multi Door Court House”
 
d.      Discussion Notes on Sander’s Article:
                                                              i.      1976 – MN– Chief justice of US had growing concern that the courts were being blown out. He convened the POUND Conference, multi door court house.
1.       Sander à we got this all wrong, we presume only one way into the court house. He challenges us to think about the fact that one size does not fit all.
2.       In ’76 ADR stood for “Alternative Dispute Resolution”
                                                             ii.      Mediation only came to our courts in the 1980s (in response to Sanders article)
 
Chapter 1A:
 
I.                    Types of Conflict: Prof. Carrie Menkel-Meadow (Georgetown University Law Center)
 
Veridical Conflict
 
“true” conflict with matched perceptions and realities, such as when two or more parties want to use the same scarce resource for different purposes (a piece of land, a room in a house, a finite number of dollars, water)
Contingent Conflict
Perceptions here do not match objective reality, such that a change in resources or perceptions of the conflict could readily resolve it. If more land, water, or dollars were available, or could be created, for example, multiple or shared uses might be possible. Another room or space could be built or found somewhere else. Such conflicts are “resolvable” if the parties can change their perceptions or cognitions or use creativity to expand resources or seek resolution from outside their “limited resources” frame of thinking.
Displaced Conflict
 Parties in conflict have manifest or express conflicts about one thing when they are really arguing or caring about something else – the underlying conflict. Parents and children may be arguing about the use of a car, but the “real” conflict is about separation, responsibility and growing up. Countries will have disputes about borders and land when the “real” dispute is about power, sovereignty, control and economic well-being or identity.
Misattributed
Parties have conflicts with the wrong “others” or about the wrong issues, (i.e. siblings fight with each other although they are really upset with their parents) Disempowered groups might fight with each other (former colonized groups, racial minorities) rather than take on the powerful party that has dominated both groups. Individuals or groups may feel they are being treated differently (and less well) when the real issue might be unavailable resources for all.
Latent Conflict
Conflict beneath the surface but not yet expressed, but perhaps should be. i.e., people may not want to start a fight so they will suppress things that make them passive aggressive. i.e., an employee may be afraid to express dissatisfaction with a working condition or assignment. If the “latent” conflict is not expressed, things may actually get worse if the parties are not honest and cannot work out their differences.
False Conflict
When parties create conflicts or disputes where there is no objective reason for them (especially if there are generally bad relations between the parties or if someone prefers “conflictual” states of unrest or activity to relative peace). In situations of opposition (e.g., employer-employee, parent-child, academic or sports competition) disputes or conflicts may develop over minor or even major issues where there is no real reason to be in dispute.
 
II.                  The Strategy of Conflict: Thomas C. Schelling
 
a.       Take away: “Winning” a conflict does not have a strictly competitive meaning; it is not winning relative to one’s adversary. It means gaining relative to one’s own value system; and this may be done by bargaining, by mutual accommodation, and by the avoidance of mutually damaging behavior.
 
III.                Constructive Conflict: Mary Parker Follet
 
a.       Friction is good (pulley/strap & violin bow/strings)
                                                               i.      Three Main Ways of Dealing With Conflict:
1.        Dominance
2.       Compromise
3.       Integration – a solution has been found in which both desires have found a place that neither side has to sacrifice anything.
 
IV.                The Argument Culture: Moving From Debate to Dialogue: Deborah Tannen
 
a.       Tannen questions “Agonism” – a programmed contentiousness – a pre-patterned, unthinking use of fighting to accomplish goals that do necessarily require it.
 
b.      Setting up a fight between two sides leads us to believe that every issue has two sides…but opposition does not lead to truth when an issue is not composed of two opposing sides but is a crystal of many sides. Often truth is in the complex middle, not the oversimplified extremes.
 
V.                  The Trouble With The Adversary System in a Postmodern Multicultural World: Carrie Menkel-Meadow
 
a.       Menkel-Meadow theorizes that binary oppositional presentations of facts in dispute are not the best way for us to learn the truth. Polarized debate:
                                                               i.       Distorts the truth
                                                             ii.      Leaves out important information
                                                            iii.      Simplifies complexity
                                                           iv.      Obfuscates rather than clarifies.
 
b.      Some cases are not susceptible to a binary solution.
 
c.       Modern problems are complex.
 
d.      Often we have more than two sides, and more than two parties.  
 
Prof. Owen M. Fiss (Yale Law School), Against Settlement
Main Idea:  Fiss argues that the ADR movement overvalues settlement and that adjudication serves a greater purpose than dispute resolution. 
Fiss’s Criticisms of Settlement:
                                                               i.       Highly problematic technique for streamlining dockets
                                                             ii.      Consent is often coerced
                                                            iii.      Bargain/ agreement may be struck by someone w/o authority
                                                           iv.      The absence of a trial + judgment makes subsequent judicial involvement difficult
                                                             v.      **Justice may not be done.
1.       Fiss analogizes plea bargaining to settlement:
a.       Like plea bargaining, settlement is a capitulation to the conditions of mass society and should not be institutionalized on a wholesale and indiscriminate basis.
ADR Movement has facilitated the increase in settlements in litigation:  FRCP 16 was amended to encourage settlements through pre-trial conferences. 
Role of the Courts + Adjudication:  Courts are seen as an institutionalization of the stranger; Adjudication is the process by which the stranger exercises power.
Irrational:  When people are left to their own devices as anonymous individuals, litigation and settlement choices tend to be irrational and nonbeneficial for themselves
 
Imbalance of Power:  Settlement is often a function of the resources available to each party to finance the litigation, and those resources are distributed unequally.
Distribution of financial resources or ability of a party to pass along costs affects & infects the bargaining process
                                                               i.      Settlement will be at odds with justice that seeks to make the wealth of the parties irrelevant.
 
·         3 Ways Disparities in resources b/w the parties influences settlement: 
(1) The poorer party may be less able to amass and analyze the info needed to predict the outcome of the litigation à disadvantaged in the bargaining process
(2) Need for damages may be an incentive to settle right away.
(3)  The poorer party may be forced to settle because he/she lacks resources to finance the litigation (i.e., lengthy discovery).
·         Distortion of Judgment:  Imbalance of power can distort judgment b/c resources influence the quality of presentation, which has an important bearing on who wins. 
 
Absence of Authoritative Consent:   Individuals are in contractual relationships that impair their autonomy.
Problem:  When parties are NOT individuals but, rather are organizations or groups. 
                                                              i.      Difficult to determine who is entitled to speak as the group’s Representative.
                                                            ii.      Risk:  Unauthorized action and settlement. 
1.       Should the decisions be binding for members of the group who did not consent or authorize that representation?
                                                          iii.      Policing Mechanisms:   See Fed.R.Civ.Pro.Rule 23  (Governs class actions) as an example
                                                           iv.      Judge’s approval could ensure against unauthorized representation by determining consent.  Fiss argues that it may be altogether impossible to gauge consent in a large class action. 
 
The Lack of A Foundation
Fiss argues that the ADR movement trivializes the remedial dimensions of lawsuits and mistakenly assumes that judgment is the end of the process.
                                                               i.      In reality, it is often the beginning of a long litigation process.
                                                             ii.      Settlement fails to take into account the court’s nearly indefinite involvement with the parties’ affairs.  One of the parties will invariable return to the court for involvement in affairs.
                                                            iii.      Settlement does not provide an entry point for continuing judicial involvement.
                                                           iv.      Although settlement’s allure in part derives from not needing the trial, it puts a burden on the judge.  For example, the judge may need to retrospectively reconstruct the situation as it was at the time a decree was entered.  Often, such an inquiry borders on the absurd and can dissipate whatever savings in judicial resources occurred in producing t