To Regulate or Not to Regulate, or (Better Still) When to Regulate
Dispute Resolution Magazine, Vol. 19, No. 3 (Spring 2013), pp. 12-13
3 Pages Posted: 28 Aug 2013 Last revised: 31 Aug 2013
Date Written: 2013
This short essay, which appeared as part of a symposium on whether ADR should be subject to regulation, suggests that the consideration of regulation should be framed in terms of two dimensions: the nature of the parties (sophisticated versus unsophisticated) and how the parties came to ADR (post-dispute, pre-dispute negotiated, or pre-dispute take it or leave it). The essay suggests that the need for regulation ranges from very strong when one party is sophisticated and the other is unsophisticated and the parties come to ADR as a result of a pre-dispute agreement offered as part of a take it or leave it transaction, to nil when ADR has been agreed to by two sophisticated parties through a process of pre-dispute negotiation.
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