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Law Outlines > Civil Procedure Outlines

Alternative Dispute Resolution Outline

Updates Available

This is an extract of our Alternative Dispute Resolution document, which we sell as part of our Civil Procedure Outlines collection written by the top tier of NYU School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Civil Procedure Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:


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

  1. 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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