Alternative Dispute Resolutions and Their Important Role in Expanding the Judiciary Process for the Public
Alternative dispute resolutions (ADRs) can come in a variety of forms, such as arbitration, mediation, case conferencing, neutral evaluation, parenting coordination, summary jury trials, or collaborative family law. Such procedures typically require less formality and occur in a more confidential setting. In such manner, the participants can bypass the court room, save money, and move more rapidly to a settlement without resorting to the process of litigation.
Arbitration is an ADR process in which an arbitrator who is a neutral third party hears the arguments from the two disagreeing parties. The two sides may present their arguments and their evidence before the arbitrator, who listens and then determines the outcome. The process is much more informal than a trial. For one, there is no jury, and presenting evidence is not as strict a process as it is during litigation. There are, however, two types of arbitration. There is non-binding and binding arbitration. In non-binding arbitration, either party may pursue litigation if it does not agree with the decision of the arbitrator. In binding arbitration, the two disagreeing parties agree that neither will sue following the outcome of arbitration; in other words, both parties surrender any right to appeal the arbitrator’s decision.
Case conferencing is a situation wherein the two disagreeing parties meet with a judge or his/her representative in order to narrow or whittle down the issues within the disagreement so that the case, as it goes forward, can be focused more tightly on a single issue. In some cases, case conferencing can lead to a total resolution of the disagreement and there is no need to go to trial. In other cases, some of the attendant issues can be resolved and the trial will proceed but at a less cumbersome heft.
Mediation is a process in which a mediator acts as a neutral party to the two disagreeing parties and the three work towards a solution that all can agree upon. Unlike an arbitrator who listens and decides the case, a mediator makes no decision. The mediator’s role is strictly to act as a facilitator: he helps the two disagreeing parties to come together and attempt to resolve their differences. Mediators tend to be used in family or community disputes or in business organization disagreements. Mediation can often be effectively used so that there is no need for the parties to go to trial as the mediator is able to help the parties settle and come to terms. Sometimes, however, mediation is not a good process; for instance, when one side has substantial or considerable command over the other, mediation may not allow the weaker or inferior party to adequately assert his claims.
Collaborative family law is an ADR process that is designed to alleviate the stress associated with divorce. It allows a couple going through a divorce to conclude the process without the necessity of entering a courtroom. This process provides the two parties the proper guidance and legal protection in order to see that needs are met. In the case that one or both parties of the divorce choose to see the suit carried out in court, the legal team used in collaborative family law must be replaced with a new team. Thus, once this process is begun, it behooves all participants to continue on to a negotiated settlement. In cases where domestic abuse is a concern, this ADR may not be the best course of action, considering that collaboration is a necessary part of the process and that amicability is much more desirable state than fear of abuse for this particular alternative dispute resolution procedure.
Neutral evaluations occur when a third party acts as a neutral expert in order to listen to the two sides in a hearing that involves a considerably truncated argument. The expert on the particular case dispute subject matter hears the two sides and, based on his or her expertise, tells the two parties what the most likely decision in a courtroom would be based on what the two parties have presented. The neutral evaluator does this with the goal being for the two parties to reach an agreeable compromise. In this case, the evaluator can guide the parties, if they like, towards arranging a settlement.
Summary jury trials act as a preview trial, a run-through in which a jury acts in an advisory capacity, hearing the abbreviated arguments of the two disagreeing parties and then providing a decision that is non-binding (though the two parties can agree ahead of time that the decision be binding if they so choose). Typically a summary jury trial gives the two parties an idea of what a jury would decide should the case be brought before one in a real trial.
Parenting coordination is a process that is meant to facilitate conflict-resolution between parents and children. The two parties may, with the court’s permission, use a parenting coordinator to develop a parenting plan that can provide a suitable situation in which healthy relationships between parents and children can be developed.
ADRs have become increasingly popular over recent years. For instance, in New York City nearly 12,000 ADR cases were processed in 2009, up from 8,500 in 2005 ADR Case Outcomes, n.d.). However, it is not just in the traditional court system of American that ADRs have become increasingly popular. All over the bureaucratized world, alternative dispute resolution processes are seen more frequently. Even in the developing world, this is occurring, as courtroom trials are eschewed for more intimate and less formalized proceedings that cost less and can be conducted with less tension and at a faster pace (Fiadjoe, 2004).
Yet as Carrington (1984) notes at the beginning of the ADR movement decades prior to its surging popularity today, the alternative dispute resolution movement drew much criticism from legal professionals and social critics. They viewed ADRs as “banner” under which “at least three different aversions unite” — an aversion for the “law itself,” for lawyers, and for “judicial procedures” (Carrington, 1984, p. 298). All three of these aversions are understandable and justifiable in terms of a dichotomy in which the bureaucracy of law conflicts with the needs of society.
While Carrington’s (1984) concern is that the ADR may “deprofessionalize the law,” the fact remains that the law in the past thirty years has become so unwieldy that more and more people see the benefit of settling their disputes without recourse to it (p. 301). Indeed, recourse to the law has become increasingly viewed as last alternative when all else, ADRs included, fail.
At the same time, some in the judicial branch have lauded the ADR as a way to restore public trust in the judicial services of the nation (Eisenberg, Wohl, Guerin, 2013, p. 1112). Chief Judge Bell, for instance, “increased public trust and confidence in Maryland’s courts” by promoting “the advancement of various dispute resolution processes such as mediation and community conferencing” (Eisenberg, Wohl, Guerin, 2013, p. 1112). This is one instance in which the traditional judiciary recognizes its ineffectiveness in addressing the needs of the public through the use of the traditional law courts and recommends the expansion of ADRs as a way to address those needs. ADRs essentially were used by Chief Judge Bell to restore the public’s trust in the judicial process by creating an abbreviated form in which trial law could be bypassed in favor of a more “user-friendly” method of obtaining a conclusion to a legitimate dispute that would otherwise linger in the bowels of justice for an extended period of time.
The time mechanism is perhaps one of the most important features of the ADR. The Constitutional right to a speedy trial (Sixth Amendment) is clearly no longer even possible in the American court system. Thus, the ADR stands out as the best option in terms of settling disputes in an orderly manner.
One recent famous example of this is the case of the NFL versus Tom Brady in what was widely known as Deflategate. Brady was accused by the NFL of tampering with the air pressure of the balls and was suspended by the league. Brady appealed the decision and the federal judge Berman heard the arguments of the two sides in what was an instance of “super-arbitration” with the federal judiciary acting as final arbitrator between the NFL and the Patriots (Belson, 2015).
Arbitration is one of the most popular forms of ADR and is frequently used to settle disputes, such as labor disagreements between unions and employers. In the case of employee Lee represented by his union and the USPS, arbitration was a method that allowed the two disagreeing sides to come to a conclusion. This case is worth examining in full to understand how the process is set in motion.
At the USPS, the rules regarding discharge for off-duty conduct at the time when Lee was employed as a mailman were as stated: Under rule 661.53, employees were prohibited from engaging in “unacceptable conduct” such as “criminal, dishonest, notoriously disgraceful or immoral conduct, or other conduct prejudicial to the Postal Service” and the conviction “may be grounds for disciplinary action” (Holley, 2012, p. 626). These rules are important for providing the context for the dismissal of Lee by the Postal Service management. Whether or not his criminal conduct could be deemed prejudicial to the Postal Service was a matter of dispute, according to the Union, and the resolution of the dispute was pursued by way of arbitration — a common exercise in disagreements between unions and businesses.
To make its case, the Union emphasized the term “nexus” as used in labor arbitration. This term means the focus or central point of the activity as well as its relation to the Postal Service. The Union claims that the nexus was not related to the Postal Service and therefore did not impact or fall within the jurisdiction of the rules. This is also known as the “nexus principle” in labor arbitration and something that can provide a ground for favorable decision (Secunda, 2004, p. 55).
The nexus principle is important here because it plays a significant role in how the issue should be considered: the context of whether or not Lee engaged in mail fraud is discussed by the Union, which shows that Lee did not engage in this nor was he charged with this — that it was a false charge leveled by the Postal Service, which essentially tainted the investigation of Lee’s conduct from the beginning. In other words, Lee was first fired and then charges were later brought in order to justify the firing. The charges had no bearing in reality, but because they were leveled in the first place, investigators were led to believe that Lee was guilty.
The arbitration process allowed the Union to expose the weakness of the Postal Service’s management and disciplinary process and brought into light how contradictory it can be in terms of actually following its own policy and historical record. In a normal court case, such a process would have been far too lengthy to actually be of any benefit to Lee; thus, the arbitration process stands out as an effective strategy.
The rule concerning the employer’s submission of the unemployment compensation claim in the labor arbitration proceedings was that the employee must not be engaged in any activity that is prejudicial to the Postal Service and it was alleged that this is what Lee engaged in — although the Union points out that the management did not prove this charge and in fact leveled a false claim. So the fact that Lee was denied unemployment compensation was another factor in the arbitration hearing that had to be considered. This was a case in which there were multiple points that needed to be addressed. In a case conferencing ADR, these points would have been whittled down in order to speed up the process and resolve it more quickly. But in a case like this, case conferencing would not have been appropriate as the issues were too important to ignore and impacted Lee’s life heavily.
According to the arbitrator, the amount of weight that should be given to Lee’s job performance after his conviction should be equal to that given to his performance prior conviction, since his conviction was not related to the job or the performance of the job. Essentially, Lee was an employee against whom no disciplinary action had ever been brought in his 13 years of service, neither before nor after his conviction — until his termination. Thus, if anything was to be considered it should have been that Lee had indeed been a suitable employee for the Postal Service. This is what the Union on his behalf argued in arbitration.
The arbitrator considered the union’s submission of evidence of the continued employment of a previous employee in an earlier case, Ms. Edwards, for a number of reasons. The case of Edwards gave context to the USPS’s fair dealings with employees and had some connection to the case of Lee as well. Thus, the Union could use this case as an example of why its argument against the USPS was correct. Thus the arbritrator had to consider it, just like a jury would consider evidence in a trial. The Union pointed out that the information regarding Ms. Edward’s continued employment was not made known to the Union until proceedings were already underway. The management protested that the Union had plenty of time prior to the proceedings to draw comparison between Edwards and Lee but failed to do so. This was not true, as the example of Edwards being allowed to continue her employment was evidence that came after the fact and too close to the proceedings for its proper investigation to be conducted. Thus, this was a piece of faulty reasoning and misleading or “bad faith” on the part of management, which ultimately allowed the arbitrator to side with the Union, just as Judge Berman sided with the players Union and Brady and the Patriots against Goodell and the NFL. Good faith is very important in relations between employers and employees and an arbitrator will not side with an employer who has not exercised good faith. In the case of Lee and the USPS, it was just another example of management’s mishandling of this entire case, from the false charge of mail fraud to arguments such as this. The fact was that Ms. Edwards’ continued employment provided ample evidence of Lee’s unfair dismissal.
The fact that the Union was able to cite six other incidents in which arbitrators sided with employees who were also guilty or charged with some crime showed that the case against Lee had been flagrant, and obstinately mishandled by management. For that reason, much weight was given to the previous arbitrators’ decisions regarding these six cases, as they had set precedence by which future arbitrators may follow and they had largely already ruled on situations as were being presented in the case of Mr. Lee, so there was plenty of guidance in terms of context and real-life situations. Arbitration hearings can rely on precedence just like a courtroom trial jury can.
Therefore, the arbitrator decided in favor of Mr. Lee because the proof, as the Union showed, was on the burden of the Postal Service to show that Lee’s off-duty conduct was prejudicial to the Postal Service, and indeed the Postal Service had not provided this proof. On the contrary, the Postal Service had done the opposite: it had made false allegations against Mr. Lee in an attempt to disparage him and his conduct and to show that he was deserving of being fired for his conviction, the nexus of which is unrelated to the Postal Service, in spite of the Postal Service’s claim that any crime against the U.S. government was a crime against the Postal Service (Holley, 2012, p. 627). For this reason, there was no “just cause” for Lee’s termination, which was needed for that management to release the employee (Mayhew, 2015): in fact, the Postal Service appeared to have been hard pressed to invent reasons for why Lee’s termination was justified — which was evident as the Union pointed out. Lee was not charged with mail fraud by the U.S. government but by the Postal Service: but the Postal Service was not in any position to deliver such a charge, therefore the fact that this charge was used at all to color the hearings and the proceedings as well as the investigation and the appeals only served to underscore the fact that the Postal Service was negligent in truly assessing the situation surrounding Lee’s termination and delivering an unbiased and fair hearing. Instead it resorted to tricks, manipulations and lies. This was conduct unbefitting a corporate organization and was ample reason to overrule the earlier decisions. Arbitration played a key role in bringing this disagreement to its proper and fair resolution.
As Perritt (1987) notes, “administrative procedure was the original alternative dispute resolution technique,” and that is evident in the above-mentioned arbitration case — but over time even administrative procedure can become sloppy and the need for another ADR necessary (p. 865). In this sense, the ADR serves a purpose of keeping the judiciary well-greased so that disputes can be attended to on a sound basis and in a timely manner. Wong (2014) on the other hand questions whether mandatory ADRs (as in the case of Lee, the Union and the USPS) are an effective way to resolve disputes, arguing that manipulation and exploitation can be exercised in any “mandatory” contract terms. Nonetheless ADRs are now commonplace, happening all over the world in various forms. There are cases of mediation and adjudication in Hong Kong (Chau, 2007), all throughout the West, and a staple of dispute resolution processes now in one of the most populate and advanced cities in the world — New York.
In conclusion, alternative dispute resolution processes serve a very important function in today’s judiciary. They provide the traditional court system with a way to give participants the services they require in order to have their legal needs met. Without recourse to ADRs, the court systems would be so bogged down with cases that they would never be heard at all let alone in a timely manner. Thus, as various cases show, ADR methods, like arbitration, can be the most effective way in dealing with disputes between two parties as it allows each side to present its arguments and a neutral third party to decide or guide the sides just as a jury or judge might do in a traditional court room setting.
ADR Case Outcomes. (n.d.). NYCourts.gov. Retrieved from https://www.nycourts.gov/ip/adr/AllCases.shtml
Belson, K. (2015). Judge erases Tom Brady’s suspension; NFL says it will appeal. The New York Times. Retrieved from http://www.nytimes.com/2015/09/04/sports/football/tom-brady-suspension-deflategate.html?_r=0
Carrington, P. (1984). Civil procedure and alternative dispute resolution. Journal of Legal Education, 298: 298-306.
Chau, K. (2007). Insight into resolving construction disputes by mediation/adjudication in Hong Kong. Journal of Professional Issues in English Education Practice, 143: 143-147.
Eisenberg, D., Wohl, R., Guerin, T. (2013). Alternative dispute resolution and public confidence in the judiciary: Chief Judge Bell’s ‘Culture of Conflict Resolutions’. Maryland Law Review, 72: 1112-1123.
Fiadjoe, A. (2004). Alternative Dispute Resolution: A Developing World Perspective.
Portland, OR: Cavendish Publishing.
Holley, W. (2012). The Labor Relations Process. OH: South-Western.
Mayhew, R. (2015). Can a Union Employee File a Charge of Wrongful Termination?
Chron. Retrieved from http://work.chron.com/can-union-employee-file-charge-wrongful-termination-15972.html
Perritt, H. (1987). Administrative alternative dispute resolution: The development of negotiated rulemaking and other processes. Pepperdine Law Review, 14: 863-928.
Secunda, P. (2004). Getting to the Nexus of the Matter: A Sliding Scale Approach to Faculty-Student Consensual Relationship Policies in Higher Education. Syracuse Law Review, vol. 55 (2004): 55-85.
Sixth Amendmentnt. U.S. Constitution.
Wong, P. (2014). Is mandatory alternative dispute resolution a panacea to attain effective payment dispute resolution? Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, 7: 10.1061/(ASCE)LA.1943-4170.0000159
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