Pepperdine Law Professor Kicks Off Institue Programs... reported by George P. Carter
Professor Anthony Miller of Pepperdine University School of Law kicked off this year’s SCALL Institute by giving attendees a broad but concise overview of Alternative Dispute Resolution (ADR).
Prof. Miller began by stating that ADR is about disputes that arise from conflict. In handling disputes individuals turn to the various aspects of ADR, which include negotiation, mediation, arbitration, and litigation. Parties may also choose to avoid disputes altogether. In discussing the various aspects of ADR, Miller focused on the cost and the control the individual parties have in the process. By cost, Miller was referring to both the monetary charge and the emotional toll such disputes have on the parties. By control, Miller was referring to the amount of control the party has in a given dispute.
In negotiation, two parties try to settle their dispute without any formal help. The disputing parties have all the control and there is relatively little monetary cost but there is a high personal cost, because according to Miller, people do not like to negotiate. However, the parties can bring in their attorneys which increase the financial costs but can lower the emotional toll on the parities because they no longer have to do it alone. The attorneys add formality to the negotiation process but their presence also opens up diversity in the negotiation process.
One common feature of negotiation is distributive bargaining. The idea behind the concept of distributive bargaining is that the settlement value will be the half-way point between the first two reasonable positions. Miller notes that this is an essential part of the process that cannot be undercut.
Miller describes mediation as assisted negotiation which he notes is diverse in its offerings. For example, the mediator and the two parties can come together and negotiate. The mediator, the two parties, and their lawyers can come together and negotiate. The parties can use their lawyers to negotiate through the mediator in what Miller described as shuttle diplomacy. Finally, the parties can choose to detach themselves from the process and allow their lawyers to settle the dispute on their behalf. Mediation is more formal, the parties still have a lot of control over the process. The monetary cost rises but the emotional cost comes down.
Miller notes that there are two types of mediators, evaluative and facilitative. Evaluative mediators tend to take strong stands in regards to the positions of the parties meaning they either favor the position or will discourage the party from taking that position. Facilitative mediators work to get the parties to express their position in the mediation.
As Prof. Miller moved to the topic of arbitration he noted that arbitration is similar to litigation in that the parties involved have no control over the outcome.
Usually, an arbitrator has the power to decide the case for the parties. That power is derived from post dispute contract that the parties agree to because they would prefer someone to decide the case for them.
Both the monetary and emotional costs rise significantly as the parties must now withstand a tiring process and at the same time pay for the arbitrator, the witness, and the lawyers. In fact, arbitration is generally more expensive than litigation because in litigation the state covers courtroom costs. Unlike litigation the arbitration is final and beyond review even if the arbitrator has made a mistake in relation to the law or to the facts of the case.
Prof. Miller touched on a variety of topics and provided an excellent proffer for the rest of the programming. On behalf of the SCALL chapter, we would like to thank Prof. Miller for the expertise he provided at this year’s 37th annual SCALL Institute.
