Bringing Transparency and Accountability (with a Dash of Competition) to Court-Connected Dispute Resolution

Among the various dispute resolution processes, mediation is the most widely institutionalized in American courts. As a result, this Article focuses primarily, although not exclusively, on the data collected and disseminated regarding court-connected mediation. The Article begins with a brief description of the institutionalization of mediation and other dispute resolution processes in the federal judicial system and in select U.S. state court systems. This narrative reveals substantial reference to the availability of mediation but a dizzying patchwork in terms of institutionalization and a significant lack of system-wide information in some states. The Article then focuses on the data that these courts collect and make publicly available regarding the extent of the use and effects of court-connected mediation. What do we know about the number of referrals to court-connected mediation? What do we know about the number of cases that actually mediate? What do we know about the effects of mediation, in terms of settlement and parties\u27 perceptions of fairness? Except for data from a few pioneering federal district courts and the state courts of Florida, we do not know much. The Article then suggests what we ought to know about the use and effects of court-connected mediation, at least in terms of collecting data elements and reporting aggregated results. Finally, the Article urges that a constellation of international, domestic, and technological developments provide both legislators and courts with a unique opportunity to institutionalize the collection and publication of key metrics regarding court-connected mediation and court-connected dispute resolution more broadly

Dispute Resolution Neutrals\u27 Ethical Obligation to Support Measured Transparency

In 2016, the Consumer Financial Protection Bureau (CFPB) issued proposed rules that would have brought substantial transparency to mandatory pre-dispute consumer arbitration. In particular, the CFPB proposed to require regulated providers of financial products and services to report to the CFPB regarding their use and the outcomes of arbitrations conducted pursuant to arbitration clauses, and further, the CFPB proposed to make such information public (with appropriate redactions). Although Congress and the President ultimately annulled the CFPB’s proposed rule, its introduction revealed the need for dispute resolution neutrals to support bringing “measured transparency” to private dispute resolution. To place the CFPB’s proposal in context, this Article draws from the analysis conducted by the ABA Section of Dispute Resolution and examines the transparency that (1) federal and state courts provide regarding their court filings and outcomes; (2) some states, some federal agencies, and some domestic and international dispute resolution organizations now require or provide regarding the use and outcomes of arbitration (and to a lesser degree, mediation); (3) some users of dispute resolution achieve through “self-help” initiatives; and (4) some commentators have proposed for online dispute resolution. Ultimately, based on this analysis, the ABA Section of Dispute Resolution chose to support the CFPB’s proposed rules regarding transparency in order to protect the integrity of arbitration. The Article then turns to dispute resolution neutrals’ ethical obligation to support the integrity of their processes. Because there are proposals to revise the Model Standards of Conduct for Mediators, the article focuses on mediators’ ethical obligations. Contracts of adhesion increasingly include mandatory pre-dispute consumer mediation clauses in the same manner that they include arbitration clauses. Many courts order the use of mediation, and increasingly, statutes require mediation. The Article urges that mediators should have an ethical obligation to support measured transparency, particularly when (1) mediations are mandated by courts, legislatures, or contracts of adhesion and (2) the resulting mediated settlement agreements will be subject to only narrow and deferential judicial review or are granted expedited judicial enforcement. The Article concludes by proposing the creation of a set of customized Model Standards for “imposed mediation.

Court-Ordered ADR: What are the Limits?

Increasingly, courts across the country are turning to non-judicial dispute resolution processes - alternative dispute resolution or ADR - to handle overwhelming caseloads.\u27 Proponents of non-judicial processes state that ADR benefits courts and litigants by reducing the time between the filing and disposition of cases, saving judges\u27 time so that they are available for the cases that really need them, saving money for the parties to the suit, and perhaps most importantly, increasing litigants\u27 satisfaction with the manner in which their disputes are resolved. A growing body of empirical evidence has begun to support the proponents\u27 claims. A study of court-annexed arbitration showed greater litigant satisfaction with the process and more rapid termination of cases. Likewise, research in Hawaii and the Northern District of California has demonstrated high litigant and attorney satisfaction with court-annexed ADR programs. Most recently, the Office of the State Court Administrator in Minnesota released a report which compared adjudication with court-annexed mediation and arbitration. Mediation and arbitration scored higher than adjudication on every measure of client satisfaction. Yet, a nagging tension exists. On one hand are harried judges who see the promotion of informed and fair settlements [as] one of the most important aims of pretrial management and view ADR as a useful, beneficial, even necessary settlement tool. These judges are joined by state and federal legislators who are concerned about the expense and delay which are hampering the courts. On the other hand are parties and attorneys who have consciously chosen the traditional litigation process. Should courts be permitted to sidetrack these parties and their attorneys from traditional litigation? Or is ADR, in the words of a Pennsylvania court, simply a [n]ew device which is part of contemporary litigation, a device which must be used to adapt the ancient institution of [trial] to present needs and to make litigation an efficient instrument in the administration of justice?\u27 Guidance on these questions is strikingly sparse, particularly in light of the courts\u27 increasing experimentation with ADR. One commentator has noted that the rules, statutes, and cases dealing with this issue constitute only a few \u27dots\u27 in a dot-to-dot line drawing which has yet to be completed. Of necessity, therefore, the analysis in this article will focus on the few cases addressing courts\u27 authority to order the use of ADR and will describe the patterns that are beginning to emerge. Most of the cases involve court-ordered arbitration programs or orders to participate in summary jury trials. Challenges mounted against these processes have been based primarily on the seventh amendment guarantee of a right to a jury trial and charges that courts have exceeded the authority granted under Rule 16 of the Federal Rules of Civil Procedure (a very small number of challenges, not dealt with here, have been based on equal protection claims and other rules in the Federal Rules of Civil Procedure). Courts have used various standards to test the extent and limits of their authority but few limits on that authority have been revealed. With one notable exception, courts have strongly defended their right to order parties to use ADR

Introduction to Volume 5 of the Yearbook on Arbitration and Mediation

Professor Welsh introduces Volume 5 of the Yearbook on Arbitration and Mediation

Magistrate Judges, Settlement, and Procedural Justice

This Article begins, in Part I, with an overview of magistrate judges’ history and role generally, including a discussion of the mechanism of “blind consent” that must be undertaken before a magistrate judge may conduct a trial. Part I then turns to magistrate judges’ role in settlement and ADR, outlines the procedural and ethical rules governing judges’ role in settlement, and highlights research revealing lawyers’ concerns regarding judges’ role in settlement. In Part II, the Article provides a brief overview of mediation in the federal courts and considers the relationship between judge-hosted settlement sessions and mediation. With this background regarding the magistrate judges’ particular role in settlement and the procedural, ethical and dispute resolution-related contexts within which judicial settlement fits, the Article turns in Part III to an overview of the procedural justice literature and then, in Part IV, returns to the three scenarios described supra to consider whether parties are likely to perceive both the adjudicative and settlement phases as procedurally fair. This analysis reveals the need for structural changes, including enhanced clarity regarding the scope and limits of confidentiality, strict limits on magistrate judges’ use of ex parte meetings, the need to insert a second opportunity for blind consent after a magistrate judge conducts a settlement session, and the need to provide magistrate judges with the opportunity to receive feedback and engage in self-reflection regarding the procedural fairness of their settlement efforts. In Part V, the Article reviews mechanisms currently used to provide judges with opportunities for feedback and self-reflection, and introduces a new tool that focuses particularly on the procedural justice of settlement sessions

Remembering the Role of Justice in Resolution: Insights from Procedural and Social Justice Theories

It is surely a luxury, at this point in the field of dispute resolution, to be invited to identify those concepts that I view as absolutely essential to our canon. Borrowing a bit from Chris Guthrie\u27s wine illustration, I think it is fair to suggest that today\u27s presentations reveal a very impressive wine cellar, with many bottles of fine wine from which to choose. I will spotlight one part of this wine cellar, where concepts regarding procedural and social justice theories can be found. I will focus primarily on procedural justice but will also reference those theories of social justice that link these two dimensions of justice, particularly in a democracy

Making Reputation Salient: Using the Reputation Index with Law Students

Would negotiation students act the way they do in simulations, if they knew this might come back to haunt them? Analyzing the consequences of basing part of students’ final grades on objective results they achieve in negotiation simulations, Welsh found a need for something to counterbalance the expected incentives to engage in distributive tactics and “sharp practice.” She settled on an explicit focus on reputation. While the “reputation index” compiled for each student is only a small fraction of the student’s grade, it is based on recent thinking about the value of negotiators’ reputations even in the short term, and gives some reason for pause to any student who contemplates “defecting,” in classic game theory terms. What’s more, it supports the trend toward giving greater autonomy and responsibility to students themselves – because the reputation that counts here is not the student’s reputation with the teacher, but her reputation with other students