Alternative Dispute Resolution Outline

Course: Alternative Dispute Resolution
Professor: Cynthia Bryant
School: University of Texas School of Law
Semester: Spring 2009
Text: Processes of Dispute Resolution, Rau, Sherman, Peppet
 
Alternative Dispute Resolution Outline
 
Lawyers, litigation, and process
The Role of Courts in American Society @ 31-36;
·         There is no way to definitively answer when some cases are and are not fit for the courts. There are, however, two functional criteria to use when trying to delineate
o        Functional Criteria: those factors that make a court peculiarly suited or unsuited to hear the matter in controversy. 
§         Does it demand objectivity? Independence and impartiality are court hallmarks, so when they are important to the matter, the court might be the proper forum
§         Can authoritative and ascertainable standards be applied to the facts to produce a principled resolution? Courts rely heavily on these factors. This is in terms of degree. 
·         Note that courts are reluctant to intervene in questions of academic scholarship, because standards do not easily apply. Math has an answer, English might not. 
o        Prudential Criteria: those factors that make a court more or less suited than other institutions to hearing and resolving a dispute, given that on any view the court is competent to adjudicate.
§         Is the cost of judicial resolution disproportionately large in relation to the amount at stake? If too disproportionate, the court might be a bad fit.
§         Does the type of case typically present repetitive kinds of factual/admin questions not calling for particularized consideration?   Cases that do not require particularized consideration do not routinely call for courts.
§         Is a sounder resolution likely to be found in a process that cares about party preferences or the imposition of a third-party judgment? If its important to give effect to the parties’ desire, don’t come to court.
§         Would judicial resolution of a matter at hand likely impair the vitality of an existing institution? A court decision might directly impair a school in an unnecessary way.   Courts also are reluctant to adjudicate disputes between intact families and don’t like to disrupt ongoing relations. 
§         Is the controversy on that needs an immediate, on-the-spot decision that must be final? Courts are not the best forum when the decision calls for an expert, on-the-scene determination and when delay destroys the values that immediate finality would assure. Like a ref calling a play.
·         The Courts should play backup in:
o        Child Custody cases
§         Factors favoring Court determination:
·         when parents disagree, an institution enjoying high public confidence must resolve the disagreement
·         society has s deep interest in protecting kids
·         some think that the decency and dignity of courts would be imparted on custody cases
§         Factors Opposing Court Determination
·         The child’s best interest is amorphous and cannot be determined especially judiciously
·         determining best interest requires predicting future behavior patterns and interpersonal relationships, work courts don’t do well
·         parties’ own preferences and utilities are crucial, so the court process is not particularly useful
·         adversarial adjudication creates and intensifies friction and exposes private affairs to no useful end.
§         How the courts may be of use:
·         Pros and Cons suggest that the court is not the proper institution to make the decision but is the proper forum to help guide parties to let them reach their own choice. 
·         Courts therefore have an important backup role to play in related-party cases, not “because judges can deftly resolve domestic controversies, but because the very threat of their being called upon to do so can expedite negotiated settlement.”
Owen Fiss, Against Settlement @ 38-45;
·         Derek Bok talks about the need for ADR and new voluntary mechanisms. This author responds that settlement is not a perfect answer. Courts are seen as the institutions of the stranger while adjudication is the process by which the stranger exercises power. He doesn’t think settlement is preferable to judgment or should be institutionalized. Rather, settling should be seen as a highly problematic technique for streamlining docketsÞ Consent is coerced, the civil equivalent of plea-bargaining, bargain may be struck by somzeone lacking authority, judicial involvement is troublesome, justice may not be done. 
·         ADR makes us think that there is rough equality between parties where there really might not be. Disparity in resources influences settlements in three ways:
o        poor party is less able to amass and analyze the information needed to predict an outcome and thus be disadvantaged
o        poor party may need the damages sought immediately and thus be induced to settle to accelerate payment
o        poor party may be forced to settle because he can’t afford to litigate. 
·         Imbalances in power distort judgment. Judges act to lessen the impact of distributional inequalities. Adjudication knowingly struggles against inequalities. 
·         The dispute-resolution process trivializes the remedial dimensions of lawsuits. Entry of judgment changes a struggle and the balance of power in it. A court can oversee and manage the remedial process over time. Moreover, if there is a problem or flaw in the decision, it can be modified. 
o        Settlement impedes vigorous enforcement, and dispute resolution tries to make settlement appear as a perfect substitute for judgment. It appears that settlement has the same effect as judgment, by creating peace, but the purpose of adjudication should be seen in broader terms: it uses public resources, public officials, and gives force to values in authoritative texts. 
·         To be against settlement is not to urge that parties be “forced” to litigate, it only says that when parties settle, society gets less than what appears and for a price it does not know it is paying. To settle often means accepting less than the ideal.
·         The cases resolved this way are not trivial in number, and the number doesn’t really matter.
·         Author and Bok disagree about purpose of lawsuit in society; he sees its private function, the author its public. See Brown v. Board of Education.   
The ADR Movement @ 51-56;
·         Recently, alternatives to official court system have flourished. However, there is no coherent movement, and so ADR supporters have varied agendas. There are, however, common themes:
o        “Efficient institutional management: clearing dockets, reducing delay, eliminating expense, unburdening the courts.” Very informal, works to produce results by conversation and cooperation.
o        HOWEVER: inexpensive, expeditious and informal adjudication is not always synonymous with fair and just adjudication. Burger noted that remedies for personal wrongs that were once considered the responsibilities of institutions other than the courts are now boldly asserted as legal “entitlements.” The courts have been expected to fill the void created by the decline of church, family, and neighborhood. 
o        Perhaps the recent discovery of alternatives to courts may be a reaction to an increased consciousness of legal rights and an explosion of claims to entitlements. Therefore, ADR might have grown to simply reduce court work to that which it was originally designed to handle. 
o        Now, many ADR processes are being linked to the courts. Courts now are used to promote settlement. 
Sheridan v. Hopewell College @ 78-82
·         Sex discrimination suit by prof. against former college employer, not given tenure because female.
·         How do we best solve the problem for everyone?
o        Faculty board of appeals and EEOC systems were tried (administrative systems), but now want litigation. Consider attorney costs, costs to town, reputation, the possible award, time for all players involved, etc
o        Even if woman goes to jury trial and they find that she was not discriminated against, she will still believe she was, no mind changing on that.
 
CLASS NOTES
1.      The Vanishing Trial?
a.      Litigation: the default option?
                                                  i.      “the incidence of social conflict ultimately hinges both on the rates at which injurious experiences are inflicted upon people and on what people define as acceptable performance of obligations or tolerate as acceptable conditions of life.”
                                                 ii.      Some stats say that trials are dying out. Decline in jury trials
b.      Miller & Sarat, 1980-8
                                                  i.      Less than 25% of disputes go to lawyers
                                                 ii.      Less than 9% of disputes excluding post-divorce go to court. 
c.      National Center for State Courts 2004
                                                  i.      State court data from 1976-2002
                                                 ii.      Total dispositions more than doubled
                                               iii.      Civil jury trials decreased from 1.8% to .6% of dispositions
                                              iv.      Civil bench trials decreased from 34.2% to 15.2%
d.      Galanter study of US Dist. cts, 1962-2002
                                                  i.      5X increase in number of civil dispositions
                                                 ii.      20% decrease in the number of civil trials
                                               iii.      Ratio of trials to dispositions
1.      1962 it was 11%
2.      Now 1.8%
e.      WHY?
                                                  i.      rising court costs
                                                 ii.      settlements are more attractive due to ready access to media. 
                                               iii.      time considerations
                                              iv.      More suits filed, everything takes longer, costs more, a vicious cycle leading to more settlements.
                                                v.      Legislative incentives to keep people out of courts
                                              vi.