Refreshing Contractual Analysis of ADR Agreements by Curing Bipolar Avoidance of Modern Common Law

75 Pages Posted: 21 Sep 2008

See all articles by Amy J. Schmitz

Amy J. Schmitz

Ohio State University Moritz College of Law; Cyberjustice Lab

Date Written: September 19, 2008

Abstract

Law governing enforcement of ADR agreement not governed by the Federal Arbitration Act (FAA) has been uncertain, and often aimless. This Article therefore calls for clarification of this law, through development of a modern contractual approach for enforcing these non-FAA ADR procedures. Although courts may look to the FAA as a resource for evaluating and developing an enforcement approach, they also should employ modern contract and remedy tools that are more adaptive than the Act's summary enforcement because it allow courts to consider contextual, relational, and equitable factors when determining application of specific enforcement remedies. This allows courts to apply these tools to foster contract compliance and cooperative relations, but to protect individuals from coerced participation in ADR that will cause undue financial or emotional hardship, or otherwise defeat the very purposes of ADR.

Keywords: contract, consumer, dispute resolution, consumer law, commercial law, arbitration, Federal Arbitration Act, ADR agreement

JEL Classification: K12, K41

Suggested Citation

Schmitz, Amy J., Refreshing Contractual Analysis of ADR Agreements by Curing Bipolar Avoidance of Modern Common Law (September 19, 2008). Harvard Negotiation Law Review, Vol. 9, No. 1, 2004, U of Colorado Law Legal Studies Research Paper No. 08-26, Available at SSRN: https://ssrn.com/abstract=1270903

Amy J. Schmitz (Contact Author)

Ohio State University Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

Cyberjustice Lab ( email )

Montreal
Canada

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