Posted: March 22nd, 2023
A legal court process is regarded as the primary platform of dispute management. However, various alternative dispute resolution (ADR) processes are developed to provide substitute yet effective avenues in managing disputes. McGregor demonstrates that the ADR process falls into two main subunits: agreement and adjudicative based (608). Further, she classifies that mediation and conciliation fall under agreement based process while arbitration is classified under the latter (608). According to the author, the ADR processes assist societal dispute resolution systems while becoming more institutionalized (608). Although the processes of ADR compliment various legal parameters, some professionals and academicians have aired dissenting opinions on their effectiveness in managing disputes. For instance, Owen Fiss rejected the ADR models and insisted that they only serve to achieve the broad value of adjudication (McGregor 611). According to McGregor, the objection to ADR is based on the premise that they mainstream individual consent rather than the doctrines of social justice on which adjudication should be set (611). Other arguments against the ADR are based on the absence of documentation, limited transparency, and failure of the processes to promote the rule of law as the courts do (611). However, various scholars have demonstrated support for the effectiveness of ADR models. They argue that the ADR process, such as mediation, when institutionalized with the parties’ consent, can enhance formal proceedings (McGregor 612). Such a method and steps can limit the dominance of lawyers in a court process and the significant publicity of matters which may be private. Although litigation under court process has been utilized conventionally as a model of dispute resolutions, contemporary approaches, such as ADR, can enhance understanding and cohesion among parties. In addition, the methods are less costly, consume less time, attract higher acceptability, and hence, should be encouraged to manage disputes across various disciplines.
ADR has a long historical background in the American justice system. McManus and Silverstein aver that the ADR model is an innovative mechanism employed to manage disputes outside the legal framework. According to McManus and Silverstein, ADR models are grounded in common law traditions, with their origin traceable from the traditional English legal practice. McManus and Silverstein illustrate:
“As early as the Norman Conquest, legal charters and documents indicate that English citizenry instituted actions concerning private wrongs, officiated by highly respected male members of a community, in informal, quasi-adjudicatory settings. In some instances, the king utilized these local forums as an extension of his legal authority; rather than adjudicate a suit via the more formal king’s court, the king would simply adopt the decision of a local but highly respected layperson without ever “reaching the merits” of the suit, creating one of the first forms of arbitration.” (McManus and Silverstein 101)
The excerpt above demonstrates that ADR has existed for several centuries under the common law (McManus and Silverstein 101). An example of the early British and Dutch pre-colonial period in New York City, where pilgrims believed lawyers made their harmony susceptible and thus avoided court process for a mediation procedure to manage societal conflicts, can best explain the historical background of ADR (McManus and Silverstein 101). It is evident from the argument of the early Pilgrim colonists that a court process and the involvement of lawyers threatened harmony and led to a divisive society. McManus and Silverstein elucidate that the conventional method of mediation after a conflict involved a group of competent male members in the community as neutral adjudicators to hear claims, ascertain damages, determine faults, and facilitate the aggrieved parties to reconcile with each other (101). Furthermore, the authors illustrate that the informal arbitration practice was applied as a norm during the colonial period. ADR approaches are effective dispute management methods from pre-colonial times to modern society.
Arbitration models continued from pre and post-independence period in the U.S. According to McManus and Silverstein, an example of the application of ADR in the post-independence era was the 1790 Patent Act provided by Congress to arbitrate on competing patents (101). In the act, an adjudicative board bringing together a member of the aggrieved parties and the member appointed by the secretary of state was set to guide mediation leading to binding decisions of the parties (101). However, irrespective of the several attempts to incorporate mediation in dispute resolution processes of the pre and the post-colonial U.S., the formal acknowledgment and the institutionalization of ADR systems occurred in the late 19th century. Consequently, McManus and Silverstein highlight that this model of mediation was approved in 1898 by Congress to settle bargaining rows in both Massachusetts and New York cities (101). McManus and Silverstein restate that: “Special mediation agencies, like the Board of Mediation and Conciliation for railway labor and the Federal Mediation and Conciliation Service (“FMCS”), which are still operative today, were formed to carry out negotiations regarding employment.” (101). Therefore, progressive mediation models utilized in the 19th century have remained active and progressively established in the professional practice.
The 20th century provides a better perspective for adopting and utilizing mediation as an ADR. McManus and Silverstein clarify that various states in the U.S. acknowledged mediation models and recognized their effectiveness in dispute resolutions. For instance, in 1920, Congress passed the federal arbitration act and gave credence to the U.S. arbitration systems. The 20th century also witnessed significant steps in legitimizing mediation as an ADR tool. For example, among the progressive attempts to institutionalize mediation process was the effort to close the court to the parties involved in an arbitration agreement by requiring them to comply with mediation commitments (McManus and Silverstein 101). Other attempts, such as empowering courts to implement arbitration processes that support mediation as an effective ADR been initiated.
Further, by allowing courts to appoint arbitrators and offer judicial support to fast track arbitration process when a party fails to advance to such requirements are milestones achieved to anchor ADR in the justice system (McManus and Silverstein 101). McManus and Silverstein elucidate that the judicial courts authorized revolutionary developments to launch mediation to enforce the ADR models. Forming the American Arbitration Association (AAA) became the climax of ADR approaches. The initiative provided a framework for parties under dispute. The acknowledgment of mediation as an ADR in the American justice systems in the 20th century was a progressive attempt that illustrated significant alternatives outside the official court systems.
Arbitration is an essential practice in managing conflict and disagreement in the U.S. Arbitration exists in significant levels of the legal practice. The authors add that law firms utilize certified AAA attorneys, retired judges, and ADR experts in mediation, arbitration, and negotiation to parties under dispute (McManus and Silverstein 102). Accordingly, judge Warren Knight launched the Judicial Arbitration and Mediation service in 1979 to support institutions and individual that required ADR facilities (McManus and Silverstein 102). Further, in 1995 Martindale-Hubbell published directories for ADR practitioners and the unique area of expertise, providing individuals and companies access to professional ADR practitioners (McManus and Silverstein 102). Such scenarios have entrenched mediation as a legal process in the entire practice of the U.S.
Different forms of ADR exist in American jurisdiction. The different iterations of ADR in the U.S. are based on their level of formality, such as conference room discussions or quasi-judicial approaches to informal practices. Nonetheless, the models provide the parties with options to non-litigation models outside the courts. According to McManus and Silverstein, the U.S. approaches to ADR are categorized into three: differentiation evaluative, facilitative, and adjudicative (102). The different attempts to install ADR helped to create acceptance of the model as a competent dispute resolution mechanism among the people.
The adjudicative system employs a quasi-formal facilitator who serves as a decision maker or adjudicator. The model applies to parties with the limited will to negotiate but seeks to evade formal litigation hence the involvement of an impartial third party (McManus and Silverstein 102). The adjudication system provides binding results. However, adjudicative ADR offer options that are not binding or obligatory and are just advisory. Another significant subcategory of adjudicative ADR is the neutral fact-finding model, which occurs when parties fail to agree about the facts. In such a scenario, the parties can employ the services of a professional to inquire into particulars of their case before determination. Adjudicative ADR initiatives have supported to manage disputes and should be enhanced in society.
Evaluative ADR enables complainants and barristers to advance their opinions and evaluations of facts and receive comments about the quality of their arguments within a dispute. McManus and Silverstein explain that parties engaged in the model are usually not willing to discuss settlement; thus, an evaluation helps contextualize each party’s bargaining power (103). Therefore, the approach alienates unreasonable expectations and reaffirms certain beliefs unique to the case. Among the models of evaluative ADR include peer evaluations and summary jury trial or lay assessments (McManus and Silverstein 103). Notably, peer evaluation allows barristers representing parties within the dispute to present their argument before a professional and impartial neutrals panel. Judicial evaluations employ the services of an emeritus judge to provide feedback about the merits of the case to the parties (McManus and Silverstein 103). Summary Jury Trial or the Lay Evaluations take the form of an expedited jury trial, when the attorneys of the parties sum up opening statements, evidence, a witness, and closing arguments, the jury returns a verdict after deliberation with the parties before polling on the panel (McManus and Silverstein 103). The process enables parties to preview the likely direction of a case verdict for further processing.
Another significant ADR is the facilitative model, which approaches the process through a neutral individual to adjudicate over the processes. The model encourages a process that leads to an understanding of the details of the case through communication and determination of the underlying issues. Evaluative ADR models are entrenched in the American dispute resolution mechanisms and provide support beyond the strict judicial court systems.
The mediation process is an important part of the alternative dispute resolution model. It is a process that involves an unbiased and neutral third party in a dispute to facilitate a negotiated consensual agreement among parties (Menkel and Meadow 2). Notably, the authors illustrate that the decision rendered by the arbitrators is less formal compared to the court systems. Additionally, the number of arbitrators can vary from one to several as chosen by the aggrieved parties and are expected to provide a written award (Menkel-Meadow 2). McManus and Silverstein note that the U.S. has advanced models of dispute resolutions outside the legal mechanisms (100). The country encompasses mechanism of arbitrations and mediations as effective ADR. According to the authors, the utilization of mediation and arbitration between countries enhances global social justice, although the usage varies within the scenarios in the U.S. (100). Therefore, mediation and arbitration are important forms of dispute resolution, which are practiced globally as a substitute for the judicial processes. Both approaches assist the involved parties to ascertain their problems and handle them through effective dialogues before arriving at a favorable resolution. The focus of mediation is to provide a scenario where both parties feel satisfied with the process of resolving their disputes (McManus and Silverstein, 104). Further, the authors illustrate that mediators are often sourced from individual of various backgrounds but preferably attorney of professional with reasonable experience on the subject matter. Mediation and arbitration are better approaches to alternative dispute management systems in delivering justice.
Deborah L. Pierce was a doctor in Philadelphia. She accused her employer over sexual harassment by her male colleagues. From the evidence gathered in support of the case, She was optimistic that her claim against the medical group that had dismissed her was solid. Deborah was an employee who gained reverences among her peers in the professional service and had “a stack of glowing evaluations and evidence that the practice had a pattern of denying women partnerships” (Silver-Greenberg and Corkery par. 1).
The case of Deborah demonstrates a level of abuse of professionalism at the workplace. The discrimination represents an onslaught perpetuated on skilled women at the workplace. The matter carries violation of the rights that guarantee decent and gainful employment for proficient women. Employers should provide employees with work environments embody ethical practices, security and implement safe practices guided by law.
Accordingly, the case illustrates the negligence on the part of the employer through the failure to protect employees from undue pressure and abuse orchestrated by insolent colleagues. For instance, the discrimination of a female medic by her male colleagues displays an insecure workplace for women in professional practice. The plaintiff presented her case for determination by courts but was blocked by mandatory arbitration clauses in work-based employment contracts and referred to private arbitration led by a private corporate lawyer and an arbitration expert. Silver-Greenberg and Corkery illustrate that the private attorney suffered a conflict of interest and did not act impartially by engaging in a friendly coffee session with the leader of the medical group that was the respondent in the case (par. 3). Therefore, Deborah felt disenfranchised since the lead arbitrator did not conduct himself with dignity to win the trust of both parties. Staszak argues that generalist juries and judges hold the position that arbitration delivers accurate decisions compared to litigation (1823). However, the author further illustrates that complex problems in medical disputes are often difficult for generalist attorneys, judges, and juries to understand. However, medical disputes are based on emotional response and thus tends to inflate damages beyond the reasonable award from a decision maker (1823). Based on the above argument, the author contends that professional arbitrators are better than generalist juries or judges when making rational decisions (1823). Nonetheless, Shieh asserts that whatever advantage arbitrators hold over juries and judges in the accuracy of decision making, features within the process of arbitration that enhance the susceptibility to partiality in favor of respondent healthcare providers are evident (1823). The author maintains that such features should be well-thought-out when assessing decision-making accuracy in an arbitration framework. The argument demonstrates that given the opportunity to identify an impartial neutral, Deborah would have welcomed the determination positively,
The nature of the case presented was an injury on the person of Deborah L. Pierce by her male colleagues. The sexual harassment case significantly impacted professional practice since it defined future workplace security for female medics against irresponsible male counterparts. The case outcome had considerable influence on the future of such work-based discrimination among female medical professionals. However, the arbitrator mismanaged the case and delivered a faulty judgment to defeat justice for the complainant. According to Silver-Greenberg and Corkery, the complainant had reasonable evidence carried on audio tapes and an important witness (par. 5). The author additionally demonstrates that the practice concealed crucial evidence by destroying audiotapes and interfered with other witnesses who retracted their testimonies given in favor of the complainant. The perspectives presented in the case are against the principle of arbitration, which is expected to delivery a reasonable concession between parties.
Academicians and other professionals find flaws in institutionalized arbitration procedures. Accordingly, Shieh explains that parties who utilize arbitration for several cases, such as employers resolving employee rows by applying binding agreements, receive favors from the process (1824). Scholars demonstrate that such parties have two main advantages in the arbitration procedures. For instance, repeat players have the potential to navigate the process and identify arbitrators who will provide favorable verdicts (Shieh 1824). Further, individuals who depend on arbitration for livelihood are likely to arrive at a conclusion that advantage institutions so that they are considered for future sessions (Shieh 1824). Accordingly, Shieh clarifies that healthcare practices have pre-institutionalized arbitration process signed on requisite forms that compel medical malpractice and negligence victims to participate in a mandatory arbitration process (1824). The illustrations by the authors are the best example of a discrimination case of Deborah L. Pierce versus the medical group. Therefore, the complainant felt defeated since substantial evidence was destroyed and a witness compelled to retract a statement, as earlier mentioned. Although arbitration has been proven beyond any reasonable doubt to deliver timely and cost-efficient results, the case illustrates how institutions take advantage of the ADR process to deny justice. Accordingly, arbitrators have occasionally replaced judges and juries with their clients (Silver-Greenberg and Corkery par 9). Such scenarios have rendered the process of arbitration ineffective, and hence, the ADR process may fail to deliver benefits to the involved parties. Particularly, parties within formal institutions such as employment and those who access service within primary healthcare facilities find themselves signing arbitration commitment that may deny them justice during accidents and other misfortunes or negligence they may encounter during the uptake of professional services.
External parties influence costs and awards in an arbitration process. In the case of Deborah L. Pierce, the legal process ruled in favor of the defendant. Hence, the complainant still has paid $ 200,000 as legal costs for the last seven years (Greenberg and Corkery par 7). Accordingly, Greenberg and Corkery reveal that the complainant faced a significant disadvantage since she could appeal the decision as it would be in a formal court of law. Over the past few decades, ADR models have gained popularity within the people and currently utilized by several individuals and companies as an alternative form of managing conflicts. However, the underlying rules tend to give the defendant unfair advantage over the complainants (par 9). Notably, although preliminary costs, such as legal fees, which are shared across parties or as per the concession, the position is often different in mandatory arbitration. Therefore, cost management is a significant factor in every arbitration process.
Cost is a significant item in an arbitration process. The National Arbitration Forum and the American Arbitration Association have declined to arbitrate over a category of cases due to non-compliance. However, Shieh demonstrates that empirical studies have delivered solutions to manage medical malpractices emanating from problematic cost configurations and the vulnerability to bias (1833). Kaiser Permanente is one example of organizations that determine medical malpractice disputes and develop frameworks that address the issues of cost benefits and accuracy (Shieh 1827). In the Kaisers models, significant claims of $ 200, 000.00 in thirty days of service require parties to identify an arbitrator who would also select another unbiased third party through an agreement within 60 days. However, the author illustrates that claims of less than $200,000 as a neutral arbitrator would suffice. The fee payable is split among other parties. The approach taken by Keiser provides a progressive outcome of cases compared to the case of Deborah L. Pierce, where the cost was high and more punitive. The cost calculation is, therefore, a significant part of an arbitration process and a subject of discussion on the preliminary stages for consensus building attained on the models and terms of payments.
Mandatory arbitration passages are ubiquitous in various industries, especially in the healthcare sector. Hospitals and other related institutions are developing mandatory arbitration clauses within clients’ engagements. It implies that most engagements, mishaps, or medical malpractices will follow mandatory arbitration practices for dispute resolution. Sachs demonstrates that clients or victims are never aware of the objective to overturn their right to a fair judicial process or oversight in case of disputes when they sign forms or contracts (117). Thus, the preference for arbitration over court process determined by a jury or judge should be studied. Therefore, it is evident that mandatory arbitration gives undue advantage to health care providers, institutions, and other players at clients’ expense.
The effectiveness of arbitration can be understood from the Korean case study. Park et al. explain that courts in Korea preferred arbitration to a judicial trial for medically related disputes (61). The authors further aver that arbitration is preferred for medical malpractices due to the negative effects of litigation, such as physical or mental exhaustion in patients, financial losses, and desolation of the reputation of healthcare professionals (62). However, the Korean legal and medical sector should promote further utilization of arbitration models to enhance medical professionalism and reduce legal risks of disputes that take longer durations but can be managed through mediation committees. Although the case of Deborah is one incident where the complainant did not find justice, several instances in the Korean scenarios have been resolved successfully. While arbitration cannot have premeditated awards to patient’s claims, Park et al. observe that several medical suits received several awards, with the highest award attributed to a case in the pediatric department (61). Therefore, arbitration is an effective ADR process for managing medical malpractices for institution and patients especially in Korea.
Furthermore, fairness plays a crucial role in the arbitration process. Welsh describes the position of the American arbitration association (AAA) on the scales of equity and fairness in arbitration care (832). The AAA protocol encourages contracting impartial and independent administrators or neutrals to manage the arbitration processes (Welsh 832). Notably, the model proposes reasonable cost adjustments to the consumer and the consideration of whether the parties can handle the fees chargeable for a procedure. However, the protocol also supports the utilization of mediation to manage disputes. The consideration of individual ability to manage the costs involved in an arbitration process entrenches fairness in the process. Additionally, the AAA protocol establishes a reporting model to enhance the effectiveness of the process (Welsh 834). The case of Deborah is a scenario that AAA seeks to address in its protocol. For instance, if the process ascertained the capability of the complainant to pay for both the fees and the final settlement of the case, arbitration would have realized its intended benefits.
Structural manipulations affect the quality of an arbitration process. Employing an independent third party is a critical aspect of the quality of an arbitration process. The supreme court of California provided a ruling over criticism or bias in the Engalla verses Permanente medical group (Shieh 1828). According to the decision, the panel concluded that Kaiser had violated its policies for appointing partial arbitrators in most medical malpractice mediation. Such practices from arbitrators have led to severe consequences, leading to a collapse of the processes. The case of Deborah, where the appointed arbitrator was seen engaging in a friendly conversation with the defendant, is a flawed practice that undermines justice for the plaintiff in a mediation process. Unethical practices within the justice system disadvantage parties, especially complainants who are not involved in the process of identifying an impartial mediator. As Shieh demonstrates, the Keiser’s arbitration model did not focus on the appellant’s interest, and hence, was implemented from an antagonistic perspective (1829). In any case, the model was biased in favor of Kaiser Permanente, with high costs generated for arbitration while adjudicating the Engalla case. Similar to the Keiser Permanente verse Engalla case, cost details was the same as Deborah L. Pierce case, where the determination left the plaintiff to pay a higher cost as settlement fee.
ADR models enhance understanding among the parties involved and are less costly than the formal court process. In the U.S., various attempts are made through progressive laws to adopt arbitration as a legitimate practice. Several institutions take advantage of the enabling infrastructure to develop perspectives, such as mandatory arbitration for employers and employees, which are achieved through signed contracts and hospital prescriptive forms. The literature analysis and case studies show that the authenticity and quality of every arbitration process rely on the competency, impartiality, and independence of the adjudicating attorney or arbitrator. Accordingly, arbitration should be anchored on the foundations of fairness and the trust of all the parties involved. Several empirical studies have revealed structural biases employed by the mandatory arbitration systems applied by institutions and healthcare providers. A significant limitation with disputes managed through arbitration or mediations is the closure of progressive avenues to appeal on a decision, as with the litigation process. The case of Deborah illustrates a failed arbitration process affected by bias. Notably, the case of Korea underpins the success of arbitration models in managing disputes between parties. Therefore, for the anticipated benefits of arbitration to be realized, it is imperative that the principles, practices, and procedures of arbitration be enforced. Further, it is important to manage changes with costs and settlements through a framework entrenched in fairness and equity.
McManus, Michael, and Brianna Silverstein. “Brief history of alternative dispute resolution in the United States.” Cadmus Journal, vol. 1, no. 3. 2011, pp. 100-105.
Menkel-Meadow, Carrie. “Alternative and Appropriate Dispute Resolution in Context Formal, Informal, and Semiformal Legal Processes.” The Handbook of Conflict Resolution. John Wiley & Sons, 2015, pp. 1-28.
Park, Hyun Jun, et al. “Controlling Legal Risk for Effective Hospital Management.” The World Journal of Men’s Health, vol. 34, no.1,2016, pp. 56-63. doi: 10.5534/wjmh.2016Shieh.34.1.56
Sachs, Sarah. “The Jury is Out: Mandating Pre-Treatment Arbitration Clauses in Patient Intake Contracts.” Journal of Dispute Resolution, vol. 2, no. 16,2018, pp. 116-131.
Shieh, David. “Unintended Side Effects: Arbitration and the Deterrence of Medical Error.” NYUL Re, vol. 89,2014, pp. 1806 – 1835.
Silver-Greenberg, Jessica, and Michael Corkery. “In Arbitration, a Privatization of the Justice System.” New York Times, 2015. www.nytimes.com/2015/11/02/business/dealbook/in-arbitration-a-privatization-of-the-justice-system.html. Accessed 4 Apr. 2019.
Staszak, Sarah. “In the Shadow of Litigation: Arbitration and Medical Malpractice Reform.” Journal of Health Politics, Policy, and Law, vol. 44, no. 2,2019, pp. 267-301. doi: 10.1215/03616878-7277380
Welsh, Nancy. “Dispute Resolution Neutrals’ Ethical Obligation to Support Measured Transparency.” Oklahoma Law Review, vol. 71, no. 3,2019, pp. 822-884.
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