Law Outlines Civil Procedure Outlines
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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?
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
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...
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