Manual of Dispute Resolution: ADR Law and Practice
By Edward A. Dauer
Summary written by Conflict Research Consortium Staff
Citation: Manual of Dispute Resolution: ADR Law and Practice. San Francisco: Colorado Springs: Shepard's/McGraw-Hill, Inc., 1994, V.1,2.
Manual of Dispute Resolution: ADR Law and Practice provides "the practitioner with a broad and accessible treatment of the law and the practice of dispute resolution. Its principal subject matter is alternative dispute resolution (ADR), a term that covers a large variety of procedures useful for resolving clients' problems within the law. The manual's primary focus is on the representation of clients through the use of those procedures.... [This is ] a guide to the selection of the process, to the representation of clients within the chosen process, and to the most common and practical legal considerations that may be encountered along the way" (Dauer, 1994, pp. 1-1--1-2).
This work is divided into six parts that are in turn divided into twenty six chapters. "Part one describes the objectives and character of ADR as a group of alternative procedures, contrasting them with litigation and discussing how they may be integrated into the litigation context. Part one also includes a set of observations about settlement negotiation as that is related to the selection and implementation of the alternatives" (p. 1-3). Chapter one talks about organization of the Manual. Chapter two gives an overview of the history of ADR and main forces contributing to its growth. Chapter three examines the use of ADR in conjunction with litigation such as in facilitating negotiation, fact gathering and case evaluation, resolving selected issues and in complicated cases involving multiple opponents where combination of ADR and litigation can be beneficial. Chapter four talks about litigation, its advantages and disadvantages, and negotiation. There are two types of negotiation: positional bargaining and collaborative or problem-solving negotiation. Distinction between competitive and cooperative styles of negotiation is also discussed in the chapter as well as negotiation pitfalls. Chapter five presents an overview of the most frequently encountered dispute resolution procedures, apart from litigation and negotiation: advisory arbitration, arbitration, early neutral evaluation, ex parte adjudication, facilitated negotiation, facility model, jury- determined settlement, mediation, mini-trial, neutral fact-finding, neutral experts, neutral listener, ombudsman, op-med, private judging, screening panels, settlement conference, special masters, summary jury trial. Author pays close attention to "the two sets of principles- -private versus court-annexed, and facilitative versus decisional" ADR (p. 5-23).
"If the manual is taken as a whole, Part Two and Three maybe thought of as the heart of it. Much of it is based on the idea of case diagnosis and the selection (and implementation) of the most appropriate resolution procedures. It assumes, as will be true more often than not, that engaging in a particular method of dispute resolution is at least partly a matter of choice. It is the lawyer's role to guide that choice. Part Two addresses the process by looking at the characteristics of the case. Part three adds to the analysis by looking at the characteristics of the procedure" (p. 1-4). Chapter six gives introduction to diagnosis and implementation of dispute resolution procedures in cases. Chapter seven talks about diagnosing cases for ADR. It even presents a checklist for ADR selection. The analysis of the cases for ADR can be done through looking at the main characteristics of the case (amount and substance of issues, procedural features, etc.), parties involved (relationship between them, power balance between them, their conflict resolution skills, etc.), features of the environment (underlying cause of the dispute, possible consequences of a conventional process, etc.), barriers to a settlement (miscommunication, misunderstanding, strong emotions). Chapter eight looks at ADR implementation and initial practice considerations such as client costs and satisfactions as well as blockages and impediments. At the end of the chapter author discusses the issue of selecting a neutral. "Chapter nine examines ADR in the corporate culture.... This chapter examines the representation of the repeat player, both from the point of view of outside counsel and from that of inside general counsel who may wish to create not just ADR capability, but a system for having that capability available for the client's caseload. The chapter includes a discussion of what one organization has styled 'mainstreaming' ADR" (p. 1-4). It also contains discussion on domestic relations cases: choosing the appropriate process, choosing the neutral, etc. as well as ADR in health care.
In the Part Three the focus is shifted from the concrete features of the case to "the relevant features of the ADR procedures themselves. The question thus changes, from diagnosis to treatment" (p. 10-1). Chapter ten presents introduction to ADR procedures. Chapter eleven talks about the basic types of ADR: decisional (arbitration, private judging), facilitative (mediation), and advisory (mini-trial, ex parte adjudication, the summary jury trial, and advisory arbitration). It also examines the lawyer's role in representing the client in arbitration, mediation, and mini-trials. Chapter twelve introduces other private dispute resolution procedures such as private judging/orders of reference, private neutral fact-finding, early settlement (rule 68 and early offers). Chapter thirteen addresses court-annexed procedures such as judicial settlement conference, early neutral evaluation, court-appointed neutral experts, special masters, summary jury trial, screening panels.
"Part Four--'Conflict Management and Pre-Dispute Agreements'--moves the discussion from the circumstances where ADR is first considered as an aid to settlement to that where ADR is thought about during the design of the underlying transaction" (p. 1-4--1-5). Chapter 15 addresses the principles of preventive law and includes ADR clauses within that context. It also explores the advantages and disadvantages of ADR agreements. Chapter 16 looks at techniques of dispute prevention or preventive law. Chapter 17 tries to explain why people choose certain styles of conflict management, particularly why some people sue. It examines the claiming behavior model that suggests that people who feel they are wronged will try to maximize their individual self-interest in respect to the case. Chapter 18 presents considerations for choosing an ADR clause. Chapter 19 discusses various drafting options (sample clauses are analyzed). Part four concludes with the question of enforceability of agreements ex ante (Chapter 20).
Part Five -- "Legal Considerations"-- addresses such questions as confidentiality in ADR (Chapter 22), use of statutory restrictions and forms (Chapter 23), implementation of the result of ADR process (Chapter 24), constitutional limitations (Chapter 25) and disputes where one of the parties is the government (Chapter 26).
Part Six -- "Professional Responsibility and Jurisprudence" -- talks about problems that might occur in the process of ADR representation. Some of the problems are "pragmatic, e.g., the changing nature of clients' expectations about lawsuits and legal services and how the profession can respond. Others are jurisprudential, such as the growing awareness of how private ADR providers may be attracting judicial talent away from public legal system. Still others are concerned with the effects of ADR on individual clients" (p. 1-6).