ALTERNATIVE AND ONLINE DISPUTE RESOLUTION

COPYRIGHT © 2010 BY JEFFREY PITTMAN

ALTERNATIVE DISPUTE RESOLUTION PROCEDURES

• Alternative dispute resolution (ADR) is a catch-all label for procedures to settle controversies outside the courtroom

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ADR HISTORY

• ADR as a concept has existed for thousands of years. For example, consider the following Bible passage:

• 1 Corinthians 6: 1, 5, 7 - When one of you has a complaint against another, do you take your complaint to a court of sinners? . . . Aren't any of you wise enough to act as a judge between one follower and another? When one of you takes another to court, all of you lose.

(CEV) Copyright © 1995 by American Bible Society

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ADR HISTORY

• George Washington used ADR procedures in his will

• Abraham Lincoln urged lawyers to promote ADR

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ADR TODAY

• ADR is a tool popular today with the judiciary, business managers and citizens

• ADR procedures include negotiation, mediation, arbitration and other procedures

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SECTION 1

THE S

EARCH FOR

ALTERNAT

IVES T

O

LITIG

ATIO

N

ALTERNATIVE DISPUTE RESOLUTION PROCEDURES• Why would you consider using an ADR

procedure?

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ADR CONSIDERATIONS

• Compare litigation to ADR on the following:

• Cost?• Time?• Privacy?• Bitterness?

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SECTION 2

–

NEGOTIAT

ION A

ND

MEDIATI

ON

NEGOTIATION

• Negotiation is a process where the parties to a dispute meet to discuss their differences

• As neither party can force a settlement under negotiation, the process involves joint problem solving and cooperative behavior

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ASSISTED NEGOTIATION

• Assisted negotiation and mediation involve third parties in the dispute resolution process

• A mediator’s role is to direct the parties discussions, limiting passions and negative rhetoric

• Advantages and disadvantages?

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SECTION 3

-

ARBITRAT

ION

ARBITRATION• Arbitration is the most powerful and

popular ADR procedure• Arbitration (as well as all ADR

techniques) is controlled by the parties and it may take a variety of forms

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ARBITRATION

• Usually arbitration agreements by parties involve submission of their dispute to a neutral third party with the power to resolve their dispute

• The main federal statute is the Federal Arbitration Act; most states also have adopted the Uniform Arbitration Act

• See textbook exhibit 3-1 for a summary view

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ENFORCEABILITY OF ARBITRATION

• How did the court rule in the following cases?Case 3.1 - Buckeye Check Cashing v. Cardegna

Case 3.2 – NCR Corp. v. Korala

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THE ARBITRATION PROCESS

• Most parties do not create their own arbitration process

• Parties usually choose an arbitration provider such as the American Arbitration Association

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AGREEMENTS TO ARBITRATE

• Agreements to arbitrate are increasing in number and generally enforceable

• Note the ethical issues presented in this regard in “Insight into Ethics,” pages 70-71

• Arbitration in employment is presented in Morrison v. Circuit City StoresHow did the court rule in this case?

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ARBITRATION APPEAL• Arbitration decisions are usually final,

not subject to court review• The limited grounds for review are

found in the textbook, page 75

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DISADVANTAGES OF ARBITRATIONThe following points are possible

disadvantages of arbitration versus litigation

Lack of appeal rights (but appeals are expensive and time consuming)

Lack of full discovery (but discovery is expensive and time consuming)

Lack of evidentiary standards“Hidden” arbitration clauses (but

truly hidden arbitration agreements may be unenforceable)

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DISADVANTAGES OF ARBITRATION

• Lack of knowledge regarding the arbitrator’s background (but the parties select the arbitrator; judges are appointed and may also be a mystery)

• Lack of precedent

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SECTION 6

– ONLIN

E

DISPU

TE R

ESOLUTI

ON

SECTION 7

–

INTE

RNATIO

NAL

DISPU

TE R

ESOLUTI

ON

INTERNATIONAL CONSIDERATIONS

• The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards is commonly called the New York Convention

• This agreement, along with other international agreements, renders arbitration a powerful dispute resolution tool

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