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Alternative Dispute Resolution
University of South Carolina School of Law
Burke, W. Lewis

ADR – Fall ‘07
Prof. Burke

Overview of ADR


What’s ADR?

i. “Alternative” – as to trial
ii. “Assisted” – by a 3d party neutral, assists courts by keeping claims out of court
iii. “Appropriate” – some claims are appropriate for certain kinds of resolutions; ie. some for trial, arbitration, mediation, etc.
iv. “Annexed” (Dispute Resolution) – attached to the court systems

Benefits of ADR

i. Judicial economy
ii. Save $$$ for clients
iii. Can result in a win/win situation/resolution
iv. Can be more flexible and accommodating of parties’ needs


i. Less protections than legal system
ii. No jury right
iii. Limited constitutional rights
iv. Deprives society of precedent and rules of law
v. Gives advantage to party w/ more financial resources
vi. Sometimes results in a “truce”, not a real solution

Why ADR was invented?

i. Saves time and money
ii. Overcrowded courts
iii. Save relationship bw parties
1. encourages discussion and communication
2. no winner and loser
iv. Lower costs for both sides and state

Sources of Conflict

Relationship conflicts

i. Strong emotions
ii. Misrepresentations or stereotypes
iii. Poor communication or miscommunication
iv. Repetitive negative behavior

Value conflicts

i. Different criteria for evaluating idleness or behavior
ii. Exclusive intrinsically valuable goals
iii. Different ways of life, ideology, or religion

Structural conflicts

i. Destructive patterns of behavior or interaction
ii. Unequal control, ownership, or distribution of resources
iii. Unequal power and authority
iv. Geographical, physical or environmental factors that hinder cooperation
v. Time constraints

Data conflicts

i. Lack of information
ii. Misinformation
iii. Different views on what is relevant
iv. Different interpretation of data
v. Different assessment procedures

Interest conflicts

i. Perceived or actual competition over substantive (content) interest
ii. Procedural interest
iii. Psychological interests

Processes – Types of Dispute Resolution


i. court and administrative adjudication
ii. private tribunals
1. Trial of cases by retired judges
2. Follows traditional rules of procedure and evidence
iii. Arbitration
1. parties agree to submit their dispute to a neutral party whom they have selected to make a decision
2. less formal, private, faster resolution, less expensive than trial (but can be more), specialized knowledge, some control over who will decide your case
3. Binding arbitration: most arbitration is binding

“Consensual” processes

i. Negotiation
1. persons seek to resolve a disagreement or plan a transaction through discussions, which are conducted by parties or their reps. (If neutral party facilitates then its a mediation)
2. Like a mediation but there is no neutral party, who will either decide or will help out
ii. Mediation
1. A neutral party helps resolve a dispute but does not have the power to impose a solution.
2. Don’t have someone else making a decision, you control the decision
iii. Conciliation
1. used interchangeably with mediation, but less formal. Neutral party is more of a go-between


i. mediation-arbitration
1. begins as a mediation. If the parties don’t reach an agreement, they proceed to arbitration
a. can be performed by same neutral or someone else
b. common in labor-management relations and commercial disputes
ii. arbitration-mediation
1. begins as an arbitration, but converts to mediation after the presentation of evidence to arbitrator.
2. Arbitrator makes and records a decision which is withheld from parties. If they settle during the mediation, the decision isn’t disclosed to them. If they don’t settle, the arbitrator’s award is disclosed and binding upon them
iii. Mini-trial
1. “structured settlement negotiations”
2. Structures private negotiation by combining mediation, arb, and adjudication
3. parties consent, decide and sign a procedural agreement to govern the process, informally exchange discovery, and select a neutral to preside
4. Used most often in business disputes bc of a good faith disagreement about the likely outcome if the dispute would be litigated
iv. Summary jury trial
1. jury has no binding authority, but helps parties better understand their cases
v. Early neutral evaluation
1. neutral identifies issues and provides an evaluation of each side’s case
vi. Fact-finding
1. neutral makes findings on contested issues of fact
vii. Ombuds
1. official, appointed by public or private institution, to receive complaints and either prevent disputes or facilitate their resolution

What Process is Appropriate

tiations fail
d. Prevention – to build in consultation to head off disputers before they arise and post-dispute feedback to prevent similar disputes in the future
e. Arrant theses procedure in a low-to-high cost sequence
f. Provide the motivation, skill, and resources necessary to make all the procedures work

Role of the Lawyer


i. Give advice about how to prevent and resolve disputes
ii. Take part in dispute resolution process
1. represent or advise parties in arb, med, and negotiations
2. function as arbitrators, mediators, and fact-finders
iii. As legislators or gov’t agents
1. define what conflicts will be addressed
2. the means by which they will be addressed
3. design and implementation of programs for the resolution of particular disputes
iv. Lawyers must understand the advantages and disadvantages of each process

Obstacles to the involvement of lawyers in dispute resolutions

i. Unfamiliarity
1. of alternative methods of dispute resolution
2. not as much of a problem today bc schools and CLE’s promote knowledge of this
ii. Fear of the unknown
1. combined w/ the apprehension that the atty may make less $ or lose control if involved in an alternative method
iii. Role as only an advocate
1. adversarial perspective often constricts the way attys function in settings where a problem-solving approach might be more appropriate
iv. Culture of lawyering and law practice
1. tends to inhibit a atty’s effectiveness by discouraging a broad range of perspectives

Lawyer’s Standard Philosophical Map

i. 2 assumptions about matters lawyers handle
1. Disputants are adversaries
a. 1 winner; 1 loser
2. Disputes must be resolved through application, by a 3rd party, of some general rule of law
ii. These assumptions are the opposite of those that underlie mediation
1. all parties can benefit through a creative solution to which each agrees
situation is unique and not governed by