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 • AT&T Mobility v. Concepcion: bans on class action arbitrations are enforceable under FAA • 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 arbitrator’s fees or unreasonable expenses