Confronting ADR Agreements' Contract/No-Contract Conundrum with Good Faith

Abstract

This Article explores the intricate problem, or conundrum, of enforcing "Alternative Dispute Resolution ('ADR') agreements" that require mediation or other non-binding dispute resolution procedures. Although public policy supports ADR, courts' inadequate analysis of ADR agreements is threatening their vitality. Instead of properly considering the flexible nature of these agreements, courts assume formalist contract or no-contract conclusions similar to those they impose on what Professor Charles Knapp has termed "contracts to bargain." ADR agreements and other contracts to bargain pose enforcement problems because they require parties' cooperation without specifying what cooperation means or how to enforce such flexible duties. This Article confronts those problems and proposes that courts use duties of good faith and revived contract remedies to contextually enforce these agreements in proper cases.

Keywords: ADR, dispute resolution, contracts, good faith, mediation, contracts to bargain

JEL Classification: K10, K39