When Dispute Resolution Begets Disputes of its Own: Conflicts Among Dispute Professionals
UCLA Law Review, Vol. 46, No. 6, 1997
Posted: 15 Nov 1998
This article reviews a series of "second generation" issues in the theory and practice of "appropriate dispute resolution," paying special attention to those areas where dispute resolution professionals disagree among themselves about the resolution of some key issues. Reviewed are such issues as the definitional boundaries of ADR processes, in their primary and hybrid forms, such as facilitative and evaluative mediation, med-arb, the uses of ADR in court and private settings, the differences between decisional and settlement seeking processes, voluntary and mandatory processes (in both public and private settings). Explored are questions of who should be providing ADR services, ranging from "wise elders" or their modern equivalents in substantive expertise, whether lawyers are governed by different rules than non-lawyers (Is ADR the practice of law?) and what ethical or other regulatory limits there should be on the uses and practice of ADR, broadly conceived. The difficulty of distinguishing between forms of legal "advice" and legal "information" is examined in the context of ethical regulation of ADR. In addition, the article explores other "hot button" ethical issues such as conflicts of interests, "screening" and fees in ADR. The article reviews the recent empirical studies of the uses of ADR in the federal courts, including both the RAND and FJC studies and concludes that there is much we still do not know about the purposes and functioning of ADR in the courts and in the private sector. Continued use and experimentation with both "presumptively" mandatory and court-annexed programs, as well as private ADR is recommended to explore quality control issues in a multiplicity of settings for more rigorous empirical and policy analysis.
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