Jacqueline Nolan-Haley - Alternative Dispute Resolution In A Nutshell

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JESSE H. CHOPER

Professor of Law and Dean Emeritus,
University of California, Berkeley

JOSHUA DRESSLER

Professor of Law, Michael E. Moritz College of Law,
The Ohio State University

YALE KAMISAR

Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan

MARY KAY KANE

Professor of Law, Chancellor and Dean Emeritus,
University of California,
Hastings College of the Law

LARRY D. KRAMER

President, William and Flora Hewlett Foundation

JONATHAN R. MACEY

Professor of Law, Yale Law School

ARTHUR R. MILLER

University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University

GRANT S. NELSON

Professor of Law, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles

A. BENJAMIN SPENCER

Professor of Law,
Washington & Lee University School of Law

JAMES J. WHITE

Professor of Law, University of Michigan

FOURTH EDITION

By

JACQUELINE M. NOLAN-HALEY

Professor of Law
Director of ADR & Conflict Resolution Program
Fordham University, School of Law

Mat #41333794

This publication was created to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Thomson Reuters does not render legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

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ISBN: 9780314285324

In memory of my father, Joseph R. Nolan,
problem-solver par excellence

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The 4th edition of this book reflects ongoing developments in the constantly expanding field of alternative dispute resolution. The Supreme Courts arbitration jurisprudence with class action and preemption issues continues to develop. We see consistent judicial support for broad enforceability of arbitration agreements in employment and consumer contracts. Mediation is gaining ground and displacing arbitration as the ADR process of choice and courts generally give deferential judicial review to mediated agreements.

In using this book, students are encouraged to consider problem-solving approaches in the practice of law. Towards that end, Collaborative Law, Restorative Justice and Therapeutic Jurisprudence are introduced as new forms of non-adversarial lawyering which emphasize the importance of process and constructive conflict intervention.

I am grateful to Fordham University Law School for providing financial support and to all my ADR students who continue to stimulate my thinking in this field.

JACQUELINE NOLAN-HALEY

March 2013

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The following authors and publishers gave me permission to reprint excerpts from copyright material. I gratefully acknowledge their assistance.

Chapter 2

American Bar Association (ABA), Model Rules of Professional Conduct and Model Code of Professional Responsibility. Copyright by the ABA. All rights reserved. Reprints by permission of the American Bar Association.

Chapter 3

American Bar Association (ABA), Model Rules of Professional Conduct, and Resolution on Mediation and the Unauthorized Practice of Law. Copyright by the ABA. All rights reserved. Reprinted by permission of the American Bar Association.

Chapter 4

Restatement of Law, Second, Judgments, Section 84, p. 286. Copyright 1982 by the American Law Institute. Reprinted with the permission of the American Law Institute. All rights reserved.

Chapter 6

American Arbitration Association Mini-Trial Procedures. Printed with permission by the American Arbitration Association.

APPENDICES

Model Standards of Practice for Family and Divorce Mediation (2000). Reprinted with permission of the Association of Family and Conciliation Courts.

American Arbitration Association Materials

AAA Commercial Arbitration Rules & Mediation Procedures (2009)

Demand for Arbitration

Task Force on Alternative Dispute Resolution in Employment, Due Process Protocol

Code of Ethics for Arbitrators in Commercial Disputes (2004)

All of these materials are reprinted with permission from the American Arbitration Association.

Uniform Arbitration Act. This Act has been reprinted with the permission of the National Conference of Commissioners on Uniform State Laws.

Revised Uniform Arbitration Act. This Act has been reprinted with the permission of the National Conference of Commissioners on Uniform State Laws.

Uniform Mediation Act. This Act has been reprinted with the permission of the National Conference of Commissioners on Uniform State laws.

ABA Model Rules of Professional Conduct, Rules 1.12, 3.3 and 5.5 Copyright by the ABA. All rights reserved. Reprinted by permission of the American Bar Association.

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IN A NUTSHELL

FOURTH EDITION

The traditional legal response to resolving disputes between parties has been for lawyers to initiate the litigation process by filing a complaint or motion. Most lawyers who graduated from law school before the mid-seventies would probably choose this option instinctively. Many law students would also probably choose this approach simply because in the majority of law school classrooms the litigation process is assumed to be the appropriate means of resolving a clients legal problems. Indeed, most law school courses on civil procedure are taught primarily through the study of adjudication. Law is studied chiefly through the analysis of appellate cases, all of which began with the filing of a complaint, motion or petition. When we add to this the television mystique of Peoples Court and Judge Judy, it is not surprising that much of the public and many lawyers think that the way to solve problems is by bringing a legal action in court.

The chief purpose of this book is to disabuse you of the one size fits all litigation mentality and to help you understand and appreciate that more creative problem-solving is available through alternative dispute resolution (ADR) processes. ADR is an umbrella term that refers generally to alternatives to the court adjudication of disputes. These include processes such as negotiation, mediation, arbitration, mini-trial and summary jury trial. ADR is also known as appropriate dispute resolution and in some international contexts such as the International Chamber of Commerce, it is understood as amicable dispute resolution. ADR can be further distinguished between private contractual processes and public processes. Even though some of the alternatives such as negotiation, mediation and arbitration, have been practiced for hundreds of years, they have achieved a new familiarity and greater usage today in the United States as well as in the international arena.