Alternative Dispute Resolution

1
Alternative Dispute Resolution

• Non-judicial methods of resolving disputes
• Increasingly used by businesses and government
• Most common forms
• Arbitration
• Mediation
• Conciliation
• Mini-trials
• Rent - a judge

2
Advantages of Alternative Dispute Resolution

• Quicker than litigation
• Less expensive than litigation (for defendants)
• No publicity
• No jury -- focus on facts, not emotion
• Parties can tailor process to suit situation or
  preferences
• Choose adjudicator
• Remedy limitations
• No precedents
• No written briefs

3
Disadvantages of Alternative Dispute Resolution

• Adjudicator not necessarily expert on law
• No publicity -- value of public exposure
• Cost for plaintiffs
• Procedures
• No guarantee of due process
• Procedures may be controlled by one side
• Limited right of appeal
• Adjudicator may be financially dependent upon
  businesses
• Learning curve -- benefit of repeated
  experience with process

4
ADR and the Courts

• Gilmer and Circuit City Pre-dispute arbitration
  agreements are enforceable
• Courts will closely examine fairness of
  arbitration agreement and process when asked to
  enforce agreement
• Armendariz Minimal procedural requirements of
  arbitration agreements
• Neutral arbitrator
• Discovery process and access to witnesses
• Written decision
• Remedies available similar to statutory remedies
• Plaintiff not required to pay arbitrators fees
  or unreasonable expenses