Alternative Dispute Resolution
KIRTLEY
WINTER 2015
I. DISPUTING PROCEDURES (Chapter 1)
A. The Processes (See tables)
1. Primary Dispute Resolution Processes
i. Adjudication
ii. Arbitration
iii. Mediation
iv. Negotiation
2. Hybrid Processes
i. There are a variety of hybrid processes that take some combination of the primary 4 processes (see table pg. 3)
B. The backdrop for all ADR procedures is judicial dispute resolution
1. Hallmarks of the litigation process that promote procedural fairness
i. Right to compel participation
ii. Established rules of procedure
iii. Access (but not representation) to all
iv. Truth seeking process
v. Right to present evidence
vi. Right to cross examination
vii. Vigorous advocacy
viii.Neutral third party decision maker
ix. Appeal rights
x. Public access to the process
2. Hallmarks of the litigation process that promote substantive fairness
i. Established set of legal principals
ii. Uniformly applied to specific disputes
iii. Appeal process to insure law is properly applied
iv. Brings finality to disputes
v. Creates precedent to reduce future conflicts
vi. Establishes and enforces societal norms embedded in the law
3. Shortcomings of litigation
i. Slow
ii. Costly
iii. Formal
iv. Adversarial — harmful to relationships
v. Parties lose control of outcome and self-determination
vi. Courts must define problem narrowly – parties’ legal rights and responsibilities
vii. Focus on past wrongs, not future solutions
viii.Limited remedies available
C. ADR’s History and Growth
1. Despite the positive hallmarks of the traditional legal system, it’s shortcomings have caused the use of ADR to explode in the last 35 years
i. In general, ADR is:
a. Faster – more efficient
b. Less expensive
c. Less adversarial
d. Private/confidential
e. Opportunity for creative solutions
f. Potential for maintaining long-term relationships
g. Means of curbing “excessive” litigation
2. Sources and Goals of the ADR Movement (p. 4)
i. ADR became popular among people for a variety of reasons
a. As a means of bringing together different racial groups (in response to the civil rights strife in the 60’s and 70’s)
b. Concern over the increased expenses and delay for parties in a crowded justice system
c. For resolutions more suited to parties’ needs
d. Reduced reliance on laws and lawyers,
e. Rebirth of local communities,
f. Transformation of long-term relationships, and
g. Relief for nonparties affected by conflict (i.e. children of divorcing couples)
3. A change in mentality among the public
i. Community Dispute Resolution Centers were created (e.g. San Francisco Community Boards)
ii. Citizen groups wary of lawyers, courts and expense and complexity of judicial resolution
iii. Establish user-friendly dispute resolution processes
iv. Add community values to define justice
v. Empower individuals to solve their own problems
4. Courts turned to ADR in response to
i. Private ADR’s success
ii. Court congestion: Backlog of cases and length of time to trial
iii. Public demand for less expensive and more efficient dispute resolution
iv. Smaller budgets for courts
v. Awareness that ADR
a. More suitable in certain cases
b. Or a valuable first step in many cases
D. Uses of ADR
1. Divorce and Child Custody Cases
i. Children suffer from being pawns in an adversarial process
ii. Litigation harmful to post-divorce parenting relationship
iii. ADR process can account for unique aspects of each family and their needs
iv. Provides modeling for future dispute resolution
2. A variety of civil disputes
i. Work place disputes
ii. Personal injury
iii. Commercial disputes
a. Domestic
b. International
iv. Discrimination cases
v. Peacemaking efforts in neighborhoods and schools
vi. Public controversies
a. E.g., environmental disputes
vii. Administrative rule making
3. ADR + Court
i. ADR is used pre-filing a court action:
a. On an ad hoc basis by agreement of the parties
b. As required by contract, employment or statute
ii. ADR used post-filing
a. Parties voluntarily decide to use private ADR
b. Judicial referral to ADR
c. Mandatory ADR based on court rule or statute
1) Arbitration of “small claims”
2) Mediation of parenting plans
3) Increasingly some form of ADR before trial
i) E.g., WDWA Rule 39.1
iii. ADR used for cases on appeal
a. Appellate courts refer cases
b. Mandate classes of cases to ADR
c. All Federal Circuit Courts of appeal have mediation programs
E. Concerns with ADR processes
1. Public loses control of privatized dispute resolution
2. Lack of publ
In sum, focusing on interests, compared to focusing on rights or power, tends to produce higher satisfaction with outcomes, better working relationships and less reoccurrence, and may also incur lower transaction costs. As a rough generalization, then, an interest approach is less costly than a rights or power approach.
1. “Getting to Yes,” Fisher, Ury, and Patton (pg. 21) (interest based)
i. Authors set out an approach to negotiation that they describe as “principled” negotiation. It has the following elements:
a. Separate the people from the problem.
b. Focus on interest, not positions.
c. Invent options for mutual gain.
d. Insist on using objective criteria.
e. Know your best alternative to a negotiated agreement (BATNA)
1) It would be unwise to agree to buy a car from a friend for $16k without knowing how much a similar car would cost you elsewhere. This latter figure is your BATNA.
ii. Why to use external factors?
a. An outcome informed by conflicting standards of fairness and community practice is likely to be wiser than an arbitrary result;
b. They reduce the costs of “backing down”—it is easier to agree to a standard than to give in to the other side’s positional demand, and
c. Unlike arbitrary positions, some standards are more persuasive than others.
iii. Using external factors often help narrow the range of disagreement and may help expand the area of potential agreement. When standards have been refined to the point that it is difficult to argue persuasively that one standard is more applicable than another, the parties can explore tradeoffs or resort to fair procedures to settle the remaining differences. They can flip a coin, use an arbitrator, or even split the difference.
2. The Pros & Cons of “Getting To Yes,” J. White – pg. 26
i. Pros
a. Great emphasis on interests-based negotiation and problem solving.
b. The objective focusing on BATNA is not to create value but to avoid entering into an agreement that is distributionally less satisfactory than you could obtain elsewhere. Similarly, the reason for focusing on objective criteria is to avoid inefficient haggling or a failure to reach agreement. Thus, it might deal with distributive aspects of bargaining indirectly.
ii. Cons
a. Emphasis on mutually profitable adjustment and problem solving aspects is to the exclusion of distributional bargaining, where one for me is minus one for you. Thus, it seems to overlook the ultimate hard bargaining. They seem to assume that a clever negotiator can make any negotiation into problem solving and thus completely avoid the difficult distribution… this is naïve.
b. The suggestion that one can find objective criteria (as opposed to persuasive rationalizations) seems quite inaccurate. Occasionally, objective criteria may do as they suggest: give an obvious answer on which all can agree. Most of the time it will do more than give the superficial appearance of reasonableness and honestly to one party’s position.