Conflict Resolution

Advanced Problem-Solving Strategies

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The ABA Dispute Resolution conference, held this year in New York City, presents an interesting mix of programs on mediation, arbitration, negotiation and collaborative practice. The conference manages to combine these fields, even though the cultures of mediation and arbitration don’t always mesh very well; in fact they sometimes seem like opposites. But practitioners in both fields seem to get along. What they have in common is the desire to avoid litigation. Having a common enemy makes friends of us all. Thus, at one of the panels I attended, in-house counsel acknowledged that they require employees to sign arbitration clauses so that the company can avoid the burden and expense of class action lawsuits. Mediation or arbitration of employment disputes […]

Attending the 13th International Online Dispute Resolution Forum, being held at Stanford Law School, the first time the conference has taken place in the United States, offers a glimpse into the future of conflict resolution. Ethan Katsch, dubbed the “father” of online dispute resolution, started the day by telling us that while it began as an outgrowth of ADR, ODR is developing into a distinct field with its own expectations, assumptions and values. I think this might be true, but I’m skeptical based on the evidence so far. Online tools are still mostly applied to allow us to conduct traditional litigation, arbitration, mediation, or negotiation, in more efficient ways. As a number of speakers told the group, traditional practitioners are […]

Online dispute resolution was developed to create a more efficient system than the courts are capable of providing, especially for relatively small cross-border and internet transactions. Courts are simply too expensive and too cumbersome to resolve these kinds of conflicts. The nature of online communications allows for a more flexible conflict resolution process, one that is not tied to any one jurisdiction’s legal rules and procedures. The vast majority of these online disputes are resolved by informal means, facilitated by the speedy communications allowed by the internet. Is ODR therefore a form of ADR? Not necessarily. Remember that even the traditional, physical courthouse steers most cases toward informal resolution, whether by direct negotiation between the parties, settlement conferences with a […]

When we use a phrase like “alternative dispute resolution,” we are usually referring to alternatives to bringing a lawsuit. Those who practice in the ADR field are often trying to persuade litigants to give up the right to sue, on the ground that the alternatives to court are better, cheaper or faster. Should ADR advocates be concerned when parties are compelled to give up their right to go to court even before a dispute arises? My answer would be yes, because I think arbitration or mediation should be freely chosen by the parties, not forced on them. And also because the word “alternative” loses all meaning if it is the only alternative. The right to jury trial should remain available […]

One of the touted benefits of ADR is that it allows parties to design their own dispute resolution process specially suited to their needs. Problems can arise, however, if a court is subsequently called upon to try to figure out what to call the process the parties have invented. A court might need to do that to decide what rights and obligations the parties have assumed under their process. A recent Federal Circuit case, Kimberly-Clark v. First Quality Baby Products, provides a nice illustration of this problem. (Thanks to the Disputing blog for bringing it to my attention.) In a series of patent infringement disputes between two consumer products giants Kimberly-Clark and Proctor & Gamble, the parties crafted a series […]

This week, the Franken amendment to a Defense appropriations bill became law, forbidding most defense contractors from using mandatory arbitration clauses in their employment contracts. I have written about this subject on my law firm blog site previously. This legislation is part of a larger, continuing trend towards the elimination of mandatory arbitration in virtually all employment and consumer disputes. People in the ADR community may be concerned about this trend, but I think we should applaud it. The US Supreme Court in recent years went very far in the direction of upholding the enforceability of mandatory pre-dispute arbitration clauses (in contrast to the approach of the state courts in California for example). As a result of the inevitable backlash […]