Alternative Dispute Resolution Non-judicial methods of resolving disputes Increasingly used by businesses and government Most common forms: –Arbitration –Mediation –Conciliation –Mini-trials –“Rent - a judge”

Advantages of Alternative Dispute Resolution Quicker than litigation Less expensive than litigation (for defendants) No publicity No jury -- focus on facts, not emotion Parties can tailor process to suit situation or preferences : – Choose adjudicator – Remedy limitations – No precedents – No written briefs

Disadvantages of Alternative Dispute Resolution Adjudicator not necessarily expert on law No publicity -- value of public exposure Cost for plaintiffs Procedures –No guarantee of due process –Procedures may be controlled by one side Limited right of appeal Adjudicator may be financially dependent upon businesses “Learning curve” -- benefit of repeated experience with process

ADR and the Courts Gilmer and Circuit City: Pre-dispute arbitration agreements are enforceable AT&T Mobility v. Concepcion: bans on class action arbitrations are enforceable under FAA Courts will closely examine fairness of arbitration agreement and process when asked to enforce agreement Armendariz: Minimal procedural requirements of arbitration agreements: –Neutral arbitrator –Discovery process and access to witnesses –Written decision –Remedies available similar to statutory remedies –Plaintiff not required to pay arbitrator’s fees or unreasonable expenses