Alternative Dispute Resolution: Theory, Practice and Policy
LAWJ-064-08
Spring 2004

Professor Carrie Menkel-Meadow and Fellows Sara Thacker and Elizabeth Davidson
Office Room 404, ph. 662-9379/E-mail meadow@law.georgetown.edu
Class Meets: Monday and Wednesdays 1:55-3:20 Room 200
Attendance is mandatory
3 credits; two short papers and final examination

ALTERNATIVE DISPUTE RESOLUTION: THEORY, PRACTICE AND POLICY

This course will critically examine recent developments in the creation and use of methods alternative to conventional forms of adjudication and trial for dispute resolution. Students should realize that full adjudication (in the form of trial on the merits) occurs in less than ten percent of all cases filed in courts and thus, is the exception, not the “norm,” for resolution of conflicts and disputes in our society. Even this figure excludes cases or disputes that are “resolved” before a case is formally filed with a court. ADR (or as we now call it, “appropriate” dispute resolution) includes a wide variety of processes, some of which are quite close to adjudication (arbitration) and others which are like adjudication in some ways (like the often adversarial presentations in negotiation and mini-trials) but unlike adjudication in other ways (the direct communication of parties in mediation and the "resolution" of problems based on future and interest based concerns, rather than past events and rights analysis).

In recent years there has been a virtual explosion of the use of a wide variety of processes and techniques for resolving and dealing with disputes and conflicts both in the public sector and in private arenas. This course will be, in some ways, an advanced Civil Procedure course, examining statutes, cases and policies that affect how courts and agencies are seeking to resolve an expanding and increasingly complex case load and mix of ways of dealing with it. In other ways, this course will focus on very jurisprudential matters--when is a court no longer a court and a judge no longer a judge, when other functions are absorbed into the traditional roles of fact-finding and law-clarification and enforcement. What process goals should our system express? When is fairness compromised? Who should be allowed to act and decide things in our legal system?

This course will also engage you experientially, as in a clinical or simulation course. You will be asked to perform and participate in simulations, role-plays and exercises so that you will understand the issues implicated in the use of ADR from the inside--behaviorally, as well as cognitively. (You will not be qualified, however, on the basis of this course, to be a third party neutral. If you are interested in mastering the skills in this area you should also take one of the more skills based courses like the Negotiation or Mediation seminars.)

As you engage with the materials in this course--readings, role-plays and exercises, written assignments--consider the following themes:

1. What is the purpose of process? How do particular processes satisfy particular goals of process? Which goals or purposes conflict with each other?
2. What is the historical context of the development of a particular process? What problem was it created to solve? What new problems are created by it?
3. What is the relation of process to substance? Are there “trans-substantive” goals to be achieved in a successful process? How are outcomes related to process choices? Are process choices related to substantive area goals? Do parties, counsel and neutrals need to be “expert” in a substantive area in order to resolve disputes (i.e. environmental, family, intellectual property, civil rights issues)?
4. Who should have power over process--the parties, their representatives, Congress, the courts, administrative agencies, people affected by disputes, conflicts and controversies? How should power over process be exercised? Who should decide when a particular process should be used--for individual disputants; for aggregate parties, for a particular dispute?
5. What are the relations and tensions between “justice” or “fairness” in individual cases and at the aggregate or system level?
6. How has institutionalization of “informalism” created its own formalism? Is this a good, bad or mixed development?
7. What is the evolving nature of process change--what ills are corrected by process changes? What new ills are created by process changes? How should process be monitored, evaluated and changed?
8. What is the lawyer’s role, both as a representative of clients and as a policy maker, in process choices?
9. What are the ethics of ADR–both in the macro ‘justice’ sense and in the micro sense of behavioral and strategic choices and behaviors?

This course will involve reading, discussion, role-playing and simulation exercises. Attendance is mandatory. There will be several short written assignments and a final examination. Grades will be based on written work, class contributions and participation and performance in class exercises.

Classes will differ in format--some will consist of more conventional reading and discussion--others will be participatory and in others we will watch films or tapes of ADR processes.

The required course books are:

1. Deborah Tannen, The Argument Culture (Ballantine Books, 2000) and
2. The text, in draft form, of Menkel-Meadow, Love, Schneider and Sternlight, Beyond the Adversarial Model: Appropriate Dispute Resolution Processes (to be published by Aspen Press, 2004) and available in the Distribution Room. I appreciate all comments and reactions to this text which is in progress and being tested in this class.

I have also ordered for the bookstore and recommend the following titles as supplementary reading:

1. Kenneth Arrow et al. Barriers to Conflict Resolution (Norton & Co. 1995)
2. Robert Axelrod, The Evolution of Cooperation (Basic Books, 1984).

Please be prepared--you may be called upon to be an “expert” on a particular reading or topic for a particular class.

Please note that the following is an outline of topics, readings and exercises; these are subject to change as announced in class, given our pace and the possibility of new developments and guest speakers that I hope to arrange. Please be sure to come to class to learn of assignment changes.

Copyright 2003 Carrie Menkel-Meadow. Teachers are free to copy these materials for educational use in their courses only, provided that appropriate acknowledgment of the author is made. For permission to use these materials for any other purpose, contact the author.