ADR Wishes for the New Year

Professor and arbitrator Harry N. Mazadoorian has some personal alternative dispute resolution-related wishes for 2005. First on the list: to once and forever dispel the fallacious but persistent notion that advocates of mediation and arbitration are opponents of the trial system. He'd like a new year marked by more collaboration between trial advocates and ADR enthusiasts who, he writes, have more in common than they realize.

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As this is the time of year when many people make resolutions and express hopes and wishes for the coming year, I thought it would be appropriate to present some of my personal ADR wishes for 2005. First on my wish list is to once and forever dispel the fallacious but persistent notion that advocates of mediation and arbitration are opponents of the trial system. From my perspective, nothing could be further from the truth. In fact, just the opposite is the case. Many ADR champions are fierce proponents of the trial system, both court and jury. A major objective of ADR is to allow for the most expeditious trial of those cases that truly need to be tried but whose path to trial is impeded by other cases that have all the earmarks of being early candidates for settlement — and in fact are often resolved by another process. One of my strongest wishes is for more collaboration between trial advocates and ADR enthusiasts — they really have more in common than many realize. Second on my wish list, and related to my first wish, is a hope that federal and state courts across the country and within each state would institutionalize and integrate more ADR processes into the array of services offered to the public. While substantial progress has been made in the introduction of court-annexed ADR, all too often the programs introducing them are ad hoc and not consistently utilized. Moreover, the use of these alternatives has peaked and declined in the face of several factors including changes in court personnel, perceived objections by segments of the bar, inadequate funding and inconsistent advocacy by the ADR community. Third, I continue to hope for greater expansion of, and creative experimentation with, modified ADR processes in an ever increasing variety of disputes. ADR list servs across the country abound with reports of numerous successful adaptations and modifications. This sort of expanded use can only make the processes more successful and robust. Creativity has gotten ADR to its current level of success and further creativity will only add to that success. Fourth, while we continue to experiment, I wish for greater agreement on the ground-rules for the basic processes. While it is true that one of the greatest strengths of ADR processes is flexibility, I am concerned that arbitration and mediation can mean so many different things in different contexts — and from state to state. Adoption of the proposed Uniform Mediation Act and the Revised Uniform Arbitration Act would go a long way to promoting a common understanding. Next, I hope for a substantial expansion of the various rosters of neutral mediators and arbitrators in such a way as to encourage greater diversity and experience. A wider spectrum of perspectives and approaches would surely strengthen and add vitality to the processes. Sixth, I’d like to see ethics within the mediation and arbitration spectrum taken more seriously. A host of issues have to be addressed and codes of conducts for all neutrals should receive greater attention and publicity. Similarly, it would be helpful to seek development of standards for counsel’s conduct during the course of an arbitration or mediation. I would especially like to see better definition of the duty to mediate in good faith. Similarly, it would be beneficial to focus on how the existing Rules of Professional Conduct impact the advocate’s conduct during a mediation or arbitration. Next, I hope for the development of more empirical data on ADR use, success and failure. All too much about our knowledge base comes from anecdotal information. Bringing greater discipline and scholarship to ADR study would teach us more about the true strengths and weaknesses of the various processes and their suitability in various contexts. Finally, I wish that we consider coming up with a better description of the concept of seeking earlier and more efficient party controlled disputes than alternative dispute resolution. The very word “alternative” suggests that it is apart and disassociated from the traditional civil justice system when, in fact, ADR is an essential part of the very continuum of dispute resolution processes. Many other names have been suggested over the years including “accelerated” or “appropriate” dispute resolution. While I am not nominating any particular replacement at this time, and am willing to stay with the existing nomenclature for a while longer, it seems reasonably clear that the name alternative dispute resolution has probably gotten us as far as it is likely to and should be retired in the near future. Too much to wish for at one time? Perhaps. But then again, it is the new year! Harry N. Mazadoorian is the Distinguished Professor of Dispute Resolution Law from Practice at Quinnipiac University School of Law and an arbitrator and mediator.

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