Alternative Dispute Resolution Outline

ALTERNATIVE DISPUTE RESOLUTION

Alternative Decision Makers

Roles can be fluid—e.g., judge sometimes holds pre-trial hearings.

Irony? SCOTUS like ADR, b/c sees litigation as inefficient. So why not just fix litigation?

1. Arbitration

• Courts only review arbitrations for bias, fraud, misconduct, or abuse of discretion

  • Moncharsh v Heily Blased, upheld award that showed error in law

• Its complicated, but arbitral awards basically do have issue and claim preclusive effect

• Companies usually use arbitration clauses to prevent consumer from bringing class actions; rarely used in litigation between major corporations

• Parties set procedural rules—usually adopt AAA rules

• By lowering costs of litigation might reduce corporation’s incentive to settle, but also reduces ability to strong-arm weaker parties into settlement out of fear of litigation costs

• Lost public benefit of precedent and learning about social wrongs

• Some states have mandatory pre-trial court-annexed arbitration, which is subject to de novo review

Gilber v Interstate/Johnson Lane Corp

• Arbitration clauses are binding unless found unconscionable under the same inquiry given any other contract term or unless Congress has specifically precluded a waiver of judicial remedies for the rights at issue

• Stevens dissent: federal Arbitration Act does not apply to employment-related disputes; FAA conflicts with age discrimination in employment act, since arbitrators can’t order broad injunctive relief

2. Mediation

• Neutral doesn’t make decisions, just facilitates, but in some styles of mediation, might propose settlements

• Can be private, collaborative, lead to innovative win-win settlements

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