Bringing It All Together: The Past, Present, and Future of ADR... reported by George P. Carter
Thomas Stipanowich, Professor of Law and the William Webster Chair
of Dispute Resolution at Pepperdine University School of Law, was the
closing speaker for the 37th annual SCALL Institute. Prof. Stipanowich
was charged with the simple task of discussing the past, present, and
future of ADR. He did a wonderful job of exploring the topic despite his
apprehension about being the only obstacle between the attendees and
lunch.
Prof. Stipanowich touched briefly on some historical aspects of arbitration and the fact that arbitration has become the surrogate of the court. The number of trials has decreased because ADR has become a more viable alternative and binding arbitration has expanded rapidly in the last 20 years. He spoke about his work on the subject of the vanishing trial and noted various reasons for the increasing use of ADR. Those reasons include an evaluation of the risk and costs associated with litigation. For example, litigation is extremely expensive and destroys relationships, business or otherwise. Prof. Stipanowich cited the 2004 Fulbright & Jaworski Survey where 70 percent of the respondents said that arbitration is faster than litigation, while 22 percent believed arbitration was more fair, and 59 percent believed that arbitration was less expensive.
In contrast there are some concerns facing arbitration. Businesses are concerned about the fairness of the arbitration process and the fact that it is by and large not appealable. There have been attacks on arbitration by consumer and employee advocates because of the rise of pre-dispute contracts. Competing options such as mediation and stepped approaches to managing conflict are looking more viable than the risk of arbitration.
Prof. Stipanowich noted that there is movement upstream as more people are using mediation and what he calls a real time approach to managing conflict. He believes that individuals and businesses need to create avenues of communication to prevent unresolved conflict. That is, we ought to address conflicts as they arise in order to stay connected with the pace of the relationship. He suggests keeping employees happy and reinforcing relationships. For example, Kaiser Permanente has implemented a policy of addressing potential issues while the patient is still in the hospital. Sometimes a simple apology is the deciding factor for someone thinking about pursuing legal action.
In addition to these internal trends, Prof. Stipanowich noted some rising external trends in the area of ADR, including globalization, and the revolution in information technology. That is more and more countries are adopting ADR methods to resolve conflict. As one might assume such methods are not going to work as they do in the United States. For example, there are mutual models of mediation being developed in China but the mediator in concerned with addressing conflict on behalf of the community.
The revolution in information technology has also changed the ways in which we are thinking about ADR. Some companies have begun to implement online negotiation and mediation. The Internal Revenue Service is considering similar methods of handling millions of various issues. Prof. Stipanowich also noted the rise of mediation and arbitration by videoconferencing. One can only imagine the more these technologies improve the more prevalent its use will become.
Though I cannot cover every issue raised in his discussion, we would like to thank Prof. Stipanowich who closed the institute on an informative, useful and entertaining discussion of ADR. As we move forward and return to our jobs, I am reminded of Oliver Wendell Holmes Jr. who commented, "Man's mind stretched to a new idea never goes back to its original dimensions."
George P. Carter is a Reference Librarian at the Law Library for San Bernardino County in San Bernardino, California
