ALTERNATIVE DISPUTE RESOLUTION
Despite the emphasis on litigation in our curriculum, disputes in the United States are not settled in court: Of all the lawsuits that are filed here, less than 2% actually go through the full trial process. As a consequence, there are probably no "litigators" in Texas who have not had considerable experience with alternative methods of resolving disputes outside of court.
And also in consequence, 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 trial process that students are mostly exposed to. 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.
This course will explore some of these alternative approaches, primarily Negotiation, Mediation, and Arbitration.
The course is intended to provide a broad introductory foundation in alternative dispute resolution for students for whom this class may constitute their only exposure to the field. But it is also suitable for students who have taken, or who plan to go on to take, specialized ADR courses like Negotiation, Mediation, and Arbitration: This is because the approach in this class may be different from the approach in some specialized courses---as (1) it will focus on both the skills necessary to properly use particular processes, and the law applicable to those processes, and (2) it will not look at these processes in isolation but will attempt to draw connections and comparisons between them, in order to decide which best may serve the interest of the client. It is open to all Law students as well as to graduate students in other disciplines.
Some of this class will be taught in the traditional way through reading and discussion (though not discussion that is "Socratic" in any conceivable 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.
With the expectation that the class cannot and will not be graded on the traditional “curve,” enrollment is limited to 20 students.
More detailed information about the particular ADR processes follows:
No one will doubt the importance of negotiating skills to the practicing lawyer. Given that 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".
3:30 - 6:30 pm
1L and upperclass elective
Satisfies ABA Professional Skills Requirement
Processes of Dispute Resolution: The Role of Lawyers
- Alan Scott Rau
ISBN: 13: 9781599410548