#11525 - Alternative Dispute Resolution - Civil Procedure

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

Woods v Holy Cross Hospital

• District Court dismissed wrongful death med mal suit for failure to meet prerequisite to lawsuit of first going through mediation. Under FL. statute, parties can only pursue litigation if they reject mediation panel’s proposal

• Statute does not violate due process, since the med. is non-binding

• Under Hanna, the Fl. statute is substantive (twin aims of Erie)

• Mere delay in jury trial does not violate 7^th Amendment

Pros and Cons of ADR

Pro:

• Costs might be lower because no appeals, less discovery (Rule 26 does not apply, subject to arbitrator’s discretion as to what is relevant); fewer motions,

• Probably faster

• Parties can choose arbitrator who’s a specialist—reduces need for expert witnesses and some evidence

• Relaxed rules of evidence

Con:

• The arbitration itself might lead to...