ALTERNATIVE DISPUTE RESOLUTION
There has been in recent years an explosion of interest in alternative approaches to resolving disputes--alternative, that is, to the adversarial approach that runs through so much of the law school curriculum. In Texas courts, for example, a judge on his/her own motion or the motion of a party may refer a pending case for resolution by "an alternative dispute resolution procedure" and courts frequently do precisely that, making it impossible to see the inside of a courtroom until ADR has first been tried.
As a consequence, there are probably no "litigators" in Texas who have not had some experience with alternative methods of dispute resolution. Almost no "lawsuits" that are filed actually go to trial. This course will explore some of these alternative approaches, including:
No one will doubt the importance of negotiating skills to the practicing lawyer: The overwhelming proportion of "cases" that are filed are ultimately settled, and lawyers negotiate more often than they try cases, draft documents, or exercise any other single lawyering skill. So there is increasing recognition that negotiation is a special field in which it is possible to acquire special competence. Exposure to this field can help students understand how to value a case for settlement and how to negotiate settlement agreements, can familiarize students with many of the stereotypical techniques used in negotiation settings, create a heightened awareness of the negotiation process and of the lawyer's role in personal manipulation, and create an appreciation of the importance of irrational forces in the negotiation process, including some understanding of the reaction of others to one's own behavior in the negotiation setting.
Third-Party Intervention in Dispute Settlement
The use of third parties to help in dispute settlement; techniques of mediation; how attorneys can use mediation to obtain better settlements.
"Private judging" in the form of arbitration is commonplace in many domestic commercial and labor disputes---in many industries litigation is practically unknown because agreements to arbitrate future disputes are always used. Arbitration is also universal as a method of dispute resolution in all international transactions between parties of different nationalities, and no international contract will fail to have an arbitration clause. In highly controversial political developments, arbitration is being increasingly used in “contracts of adhesion” between sellers and consumers, between employers and employees, and between hospitals and patients. . This segment will discuss the law and practice of private agreements that remove disputes from the judicial system, as well as variations such as "Rent-a-judge" programs.
"Hybrid" Dispute Resolution Devices
Innovative methods to promote settlement and streamline litigation: E.g., the "mini-trial"; the "summary jury trial"; "court-annexed arbitration".
Some of this class will be taught in the traditional way through reading and discussion (though not discussion that is "Socratic" in any sense). However, there will also be a number of practical exercises in the form of simulated negotiations and mediations, in an attempt to illustrate and enable students actually to become familiar with the various dispute resolution techniques. There will certainly be movies.
The course is intended to provide a broad foundation in alternative dispute resolution for students from whom this class constitutes their only exposure to the field---but it is also useful as an introduction for students who plan to go on to take specialized ADR courses like Negotiation, Mediation, and Arbitration. It is open to all Law students as well as to graduate students in other disciplines.
With the expectation that the class cannot and will not be graded on the traditional “curve,” enrollment is limited to 20 students.