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Yale-Quinnipiac Workshop Examines Alternative Dispute Resolution

Yale-Quinnipiac Workshop Examines Alternative Dispute Resolution

In Maryland in 1999, a truck accidentally collided with a pedestrian overpass, knocking the bridge onto a highway. One person was killed and four were injured when their cars hit the rubble. The seemingly inevitable prospect of litigation was daunting, with so many parties, including the state, involved.

But the case was resolved in a single, day-long session through mediation. Lawyers representing each of the potential plaintiffs agreed to work together, and all of the parties gathered in a hotel. The mediator was a former judge. And even with so many J.D.'s involved, a lawsuit was never filed in the case.

Alternative dispute resolution (ADR) is the term used to describe this sort of action outside the courtroom. Professor Jennifer Brown, director of the Quinnipiac-Yale Dispute Resolution Workshop and a senior research scholar in law at YLS, explains that ADR encompasses a broad array of practices, from arbitration to negotiation and mediation. And she points out that it is a growing part of the legal system in the U.S. The goal of the Quinnipiac-Yale Workshop is to discuss "the theory and practice of preventing or resolving disputes outside the court system."

The workshop was started in 1998 and features monthly talks by distinguished scholars and practitioners in the field. Past speakers have included Robert Mnookin, director of the Harvard Negotiation Research Project; Deborah Hensler, John W. Ford Professor of Dispute Resolution at Stanford Law School; and Russell Korobkin of the University of Illinois College of Law. Brown is proud of how the series has allowed Yale Law School "to support some of the best theorizing in the field."

The use of alternatives to litigation is becoming more common around the country, and many current law students will one day represent clients who choose to enter mediation or arbitration. There are even several online dispute resolution web sites, with names like "It is what's happening in the justice system," says Brown. She adds, "One goal [of the workshop] is just to expose participants to some of the thinking that is going on in the larger academy."

Some advantages to the ADR approach, says Brown, include the integration of non-legal elements in resolution, as well as the capacity for the parties to retain greater control over the role of law in their dispute. However, there is a concomitant risk that people will unknowingly give away some legal protections in the process.

Asked where ADR has worked well, Brown points to the U.S. Postal Service's Redress system, which settles disputes between supervisors and employees using neutral outside mediators. The program has resolved the great majority of cases brought into it and has dramatically cut the number of formal grievances filed with the EEOC. Some employees were happy to walk away with an apology or a simple compromise.

Brown also thinks that ADR is generally effective in family law, where disputants are "going to [have] an ongoing relationship."

She considers herself a skeptical assessor of the field, however, and also names several problematic areas. Some minor criminal cases, especially juvenile cases, have been resolved outside the courtroom, but Brown sees a problematic level of coercion when one party faces imprisonment.

There are also arbitration clauses written into many consumer contracts, specifying what rules the parties must follow in arbitration, that people may not be aware of. For instance, several major credit card companies inserted binding arbitration clauses into their contracts after losing class-action lawsuits. Brown points out that this can depart from "what people's legal recourse is."

Given the prevalence of ADR, Brown says, "I still think that you can't analyze it ? effectively unless you understand descriptively what it is."

This year's speakers will include (see Master Calendar for details on times and locations):

September 10 - Tom Stipanowich, president, CPR Institute
October 2 - Leonard Riskin, C.A. Leedy Professor and director, Center for the Study of Dispute Resolution, University of Missouri-Columbia School of Law
October 16 - Deborah M. Kolb, professor of management, Simmons College
February 18 - Chris Guthrie, associate professor, University of Missouri-Columbia School of Law
March 4 - Robert Baruch Bush, professor of law, Hofstra University
April 8 - Sarah Cobb, director, Institute for Conflict Analysis and Resolution, George Mason University
April 22 - Stephen J. Ware, professor, Cumberland School of Law