What Difference Does ADR Make? Comparison of ADR and Trial Outcomes in Small Claims Court

This study compares the experience of small claims litigants who use alternative dispute resolution (“ADR”) to those who proceeded to trial without ADR. ADR had significant immediate and long-term benefits, including improved party attitudes toward and relationship with each other, greater sense of empowerment and voice, increases in parties taking responsibility for the dispute, and increases in party satisfaction with the judiciary. Cases that settled in ADR also were less likely to return to court for an enforcement action within the next year

The Restorative Workplace: An Organizational Learning Approach to Discrimination

On the fiftieth anniversary of Title VII of the Civil Rights Act, many employers continue to search for ways to implement the law’s antidiscrimination and equal opportunity mandates into the workplace. The current litigation-based approach to employment discrimination under Title VII and similar laws focuses on weeding out “bad apples” who are explicitly prejudiced. This “victim-villain” paradigm may fail to correct the complex, nuanced causes of workplace discrimination, or exacerbate the problem. This article explores an alternative approach—restorative practices—that may integrate the policy goals of antidiscrimination laws into the practical realities of managing an organization. Restorative practices engage everyone in the organization with a sense of ownership in and commitment to the mission of building an inclusive, egalitarian workplace. Merging research from the fields of employment law, organizational management, and cognitive psychology, this article analyzes how restorative practices can facilitate an organizational learning approach to workplace discrimination. Proactively, restorative dialogue helps to build social capital, reduce explicit and implicit biases, and cultivate a shared commitment to egalitarian norms. Reactively, restorative practices can manage defensive routines often triggered by discrimination complaints and provide a process that can transform conflict into greater understanding and change. A restorative approach makes it more likely that the individuals involved—and the larger organization—can repair the harms caused by discrimination, correct systemic issues underlying the problem, and learn to prevent inequities in the future

What We Know and Need to Know about Court-Annexed Dispute Resolution

Mediation and other alternative dispute resolution (ADR) processes are now well integrated into the United States judicial system, in both civil and criminal cases. This white paper, drafted for the American Bar Association Commission on the Future of Legal Services, summarizes empirical evidence about the costs and benefits of court-annexed ADR. The first-generation of ADR research found that mediation and other ADR processes resulted in high party satisfaction rates, high settlement rates, cost savings and efficiency, increased long-term cooperation among the parties, and higher compliance rates with the outcome. The paper then examines a ground-breaking study conducted by the Maryland Judiciary about the costs and benefits of court-annexed ADR. The Maryland ADR study provides an example of rigorous second-generation ADR research that isolates the impact of participating in an ADR process rather than a trial, regardless of whether a settlement is reached. The research also examines the impact of specific mediator interventions (such as reflecting, caucusing, and eliciting options for resolution) on party attitudes and outcomes. The paper ends with a call for additional second-generation research about what works in court-connected mediation and other ADR processes, and identifies some of the gaps in the existing body of ADR empirical research

Regulation by \u3ci\u3eAmicus\u3c/i\u3e:The Department of Labor’s Policy Making in the Courts

This Article examines the practice of “regulation by amicus”: that is, an agency’s attempt to mold statutory interpretation and establish policy by filing “friend of the court” briefs in private litigation. Since the United States Supreme Court recognized agency amicus interpretations as a source of controlling law entitled to deference in Auer v. Robbins, agencies have used amicus curiae briefs—in strategic and at times aggressive ways—to advance the political agenda of the President in the courts. Using the lens of the U.S. Department of Labor’s amicus activity in wage and hour cases, this Article explores the tension between the extraordinary power and efficiency of agency amicus policy making on the one hand, with the harms this less transparent approach may inflict on fundamental democratic values such as public participation and separation of powers. The Article first puts the issue in empirical context by examining the nature and impact of the DOL’s amicus filings in 324 Fair Labor Standards Act cases from the Roosevelt through Obama administrations. To evaluate the normative implications of amicus policy making, the piece then juxtaposes the especially active amicus strategies employed by the Bush administration—which manipulated deference principles to weaken worker protection laws—and the Obama administration—which increased amicus filings to revive enforcement of the Fair Labor Standards Act. This Article proposes an analytical framework for judicial review of agency amicus arguments that remains faithful to separation of powers—especially to the legislative public policy established in remedial statutes like the FLSA

Regulation by \u3ci\u3eAmicus\u3c/i\u3e:The Department of Labor’s Policy Making in the Courts

This Article examines the practice of “regulation by amicus”: that is, an agency’s attempt to mold statutory interpretation and establish policy by filing “friend of the court” briefs in private litigation. Since the United States Supreme Court recognized agency amicus interpretations as a source of controlling law entitled to deference in Auer v. Robbins, agencies have used amicus curiae briefs—in strategic and at times aggressive ways—to advance the political agenda of the President in the courts. Using the lens of the U.S. Department of Labor’s amicus activity in wage and hour cases, this Article explores the tension between the extraordinary power and efficiency of agency amicus policy making on the one hand, with the harms this less transparent approach may inflict on fundamental democratic values such as public participation and separation of powers. The Article first puts the issue in empirical context by examining the nature and impact of the DOL’s amicus filings in 324 Fair Labor Standards Act cases from the Roosevelt through Obama administrations. To evaluate the normative implications of amicus policy making, the piece then juxtaposes the especially active amicus strategies employed by the Bush administration—which manipulated deference principles to weaken worker protection laws—and the Obama administration—which increased amicus filings to revive enforcement of the Fair Labor Standards Act. This Article proposes an analytical framework for judicial review of agency amicus arguments that remains faithful to separation of powers—especially to the legislative public policy established in remedial statutes like the FLSA

Regulation by \u3cem\u3eAmicus:\u3c/em\u3e The Department of Labor\u27s Policy Making in the Courts

This Article examines the practice of “regulation by amicus”: that is, an agency’s attempt to mold statutory interpretation and establish policy by filing “friend of the court” briefs in private litigation. Since the United States Supreme Court recognized agency amicus interpretations as a source of controlling law entitled to deference in Auer v. Robbins, agencies have used amicus curiae briefs—in strategic and at times aggressive ways—to advance the political agenda of the President in the courts. Using the lens of the U.S. Department of Labor’s amicus activity in wage and hour cases, this Article explores the tension between the extraordinary power and efficiency of agency amicus policy making on the one hand, with the harms this less transparent approach may inflict on fundamental democratic values such as public participation and separation of powers. The Article first puts the issue in empirical context by examining the nature and impact of the DOL’s amicus filings in 324 Fair Labor Standards Act cases from the Roosevelt through Obama administrations. To evaluate the normative implications of amicus policymaking, the piece then juxtaposes the especially active amicus strategies employed by the Bush administration—which manipulated deference principles to weaken worker protection laws—and the Obama administration—which increased amicus filings to revive enforcement of the Fair Labor Standards Act. This Article proposes an analytical framework for judicial review of agency amicus arguments that remains faithful to separation of powers—especially Congress’s purpose in passing remedial statutes like the FLSA