Principles for Policymaking about Collaborative Law and Other ADR Processes
89 Pages Posted: 12 Apr 2007
This Article articulates a set of principles for policymaking about alternative dispute resolution (ADR) to promote values of process pluralism, choice in dispute resolution processes, and sound decisionmaking. It argues that policymakers should use a dispute system design (DSD) framework in analyzing policy options. DSD involves systematically managing a series of disputes rather than handling individual disputes on an ad hoc basis. It generally includes assessing the needs of disputants and other stakeholders, planning to address those needs, providing necessary training and education for disputants and dispute resolution professionals, implementing the system, evaluating it, and making periodic modifications as needed. When developing ADR policies, policymakers should engage representatives of disputants and other stakeholders as much as appropriate. Practitioners and policymakers should generally provide a range of suitable choices of dispute resolution processes for individual disputants and system stakeholders. Dispute resolution professionals should maintain appropriate relationships between innovative ADR processes and the contemporary dispute resolution system.
Policymakers should normally resist the temptation to make policies governing ADR processes merely or primarily by adopting new rules. Just as society encourages people to use trials only after exploring other processes for resolving disputes, ADR policymakers should adopt new rules only after analyzing the applicable dispute system and considering the benefits and limits of non-regulatory policy options. Non-regulatory approaches include training for disputants and professionals, dispute referral mechanisms, technical assistance for ADR organizations, and grievance mechanisms for parties in ADR processes, among others. Strategies that rely exclusively or primarily on regulation can create significant problems. In the name of promoting uniformity, regulation can restrict or discourage legitimate choices by disputants and dispute resolution professionals. In addition, invoking government power to establish ADR policy can increase the risk of developing orthodox dispute resolution ideologies by officially favoring certain procedures and disfavoring others.
Some regulation of ADR certainly is appropriate. This includes some regulation of the use of ADR communications in court, regulation of the relationship between ADR processes and the courts, protection of dispute resolution consumers, and adoption of default rules to address significant problems caused by omissions or ambiguities in ADR agreements. The most effective strategies are likely to involve a coordinated combination of various policy options. ADR policymakers should generally begin by considering non-regulatory options and adopt regulatory options only to the extent needed to accomplish desired goals.
To illustrate these principles, this Article analyzes Professor Christopher Fairman's proposal for a new ethical rule for Collaborative Law (CL) and contrasts it with a proposal by Professor Scott Peppet. This Article argues that Peppet's proposal is generally preferable because it is more consistent with the principles presented in this Article, though both proposals would benefit by following those principles to a greater extent. Fairman proposes that the American Bar Association adopt a new ethical rule specifically for CL. This Article argues that a new rule is not necessary and that adopting such a rule prematurely may actually inhibit useful innovations in practice. Many ethical rules already regulate lawyers' CL services and five bar association ethics opinions have applied these rules to CL. Thus the issue is whether it is necessary or wise to adopt a new and uniform rule now. Establishing new rules now may have the unintended effect of inhibiting people from developing and using appropriate techniques because certain issues will have been settled by official rules. This Article argues that other, non-regulatory mechanisms are likely to be more appropriate to achieve Fairman's objective of increasing education about CL.
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