Dispute Resolution Course Suggestions

Dispute resolution, or as it is more commonly named now, “appropriate” (and in some cases, “alternative”) dispute resolution, is the study and practice of the many ways legal disputes and transactions are handled, managed or resolved. “A” DR involves both the oldest and some of the newest ways of resolving conflicts that have legal implications. As long as there have been people and communities, methods for resolving disputes have had to be developed, ranging from mediation by older and wiser community members to the highly technical rule systems of our own litigation in both civil and criminal contexts.

In recent years, interest in ADR has grown from two, often competing, sets of policy choices-- greater efficiency in our case processing (docket clearing and “quantitative” ADR) and greater party participation and influence over situation-specific and adaptive solutions to conflict (“qualitative” ADR). ADR has come to mean almost any form of dispute resolution outside of full adjudication, even though less than one percent of all civil cases filed in state and federal courts are actually tried to a judge or jury. There are more criminal trials, especially in California, where the “three strikes and you’re out “ law makes it less likely that criminal defendants will engage in plea negotiations at the time of their third charged offense, but plea negotiations are still the most common method of dispute resolution in criminal cases.

DR should first be encountered in the first year basic course in Procedural Analysis where processes of civil dispute resolution in the formal court system should be contrasted to the less formal methods of dispute resolution, Legal Profession, where a survey of practice types includes a brief look at mediators and arbitrators and an introduction to ethics in negotiation, and International Legal Analysis, where uses of negotiation, mediation, arbitration and international litigation are explored. DR processes include dyadic negotiations between parties or their lawyers, before during and even after a lawsuit; arbitration in which a third party or panel, like a judge, but chosen by the parties, makes a definitive ruling; and mediation or conciliation, where a third party facilitates a solution arranged by the parties themselves. Hybrids of these “primary” forms of DR now often include fact-finding and ombuds services, summary jury trials in court, private mini-trials and variations of mediation and arbitration together.

Courses in DR should be of interest to anyone who expects to practice law in litigation, transactional and governmental settings as well as to anyone who plans to work in management, government, or education, either domestically or internationally. Courses in dispute resolution will have special relevance for those who expect to plan a career in litigation, diplomacy, international business, or labor law, or in the newer careers of arbitration, mediation, ombuds services and court administration, as well as more conventional legal careers in business transactions, legislatures and as judges. In fact, good courses in DR skills could simply be considered among those “life skills” essential for the practice of any profession or living a meaningful life in which we seek to create good and quality solutions to difficult problems of resource allocation, legal rights, and needs and human relationships.

A balanced curriculum in DR should provide instruction in basic theory and jurisprudence, as well as a healthy dose of skills training and experiential work. UCI Law hopes to provide an opportunity for students to get a firm grounding in DR theory and then to apply the skills of negotiation and creative problem solving in a wide variety of substantive settings, both in upper level courses and in clinical and experiential settings.

The study of dispute resolution requires a firm grounding in litigation (begun in Procedural Analysis) and later skills courses in Negotiation, Mediation, Trial Advocacy, International Commercial Arbitration, International Litigation, as well as a variety of other disciplines that have contributed to this interdisciplinary field. The study of social and behavioral sciences such as anthropology (the social and cultural contexts of disputing), economics (efficiency and cost- benefit analyses of legal and dispute resolution regimes), game theory, sociology (who engages in disputes and why, with what structural and individual variations), cognitive and social psychology (methods of information processing and bargaining behavior, as well as personality and structural impediments to reaching agreements) all contribute to what we have come to call the theory of dispute processing.

At a jurisprudential level, students of DR will come to understand when particular structures and processes of dispute resolution are most appropriate--when should cases receive the full adversary treatment of adjudication in courts and when should parties exert more control over both the process and outcome of their disputes. DR study enables us to look at the remedial powers of courts and other dispute resolution institutions in contrast to potential “all gain” solutions crafted by problem-solving dispute resolvers, whether parties or professionals. In international dispute resolution, the absence of a final “arbiter” or International Supreme court makes dispute resolution across borders and legal boundaries particularly important. Issues of enforcement and compliance are particularly at issue here. The relationship of formal institutions for rights development and enforcement to more informal processes for satisfaction of human needs remains an issue and tension in both domestic and international dispute resolution.

At a policy and planning level, lawyers need to know when and what kinds of dispute resolution clauses to draft for contracts and transactions and what to consider (and counsel clients for) in use of settlement of lawsuits at individual, corporate and group levels. Given recent policy debates in Congress, students of DR should understand who should make decisions about what process is most appropriate (the courts, the parties, their lawyers or Congress or state legislatures). ADR is now a major, and often mandatory, part of public systems of disputing inthe courts, as well as gaining ascendancy in private dispute resolution and transaction planning. Systems designers plan grievance and dispute resolution processes for unions, government agencies, courts, corporations, hospitals and other health care providers, educational institutions and international organizations.

A good sequence of study of DR begins with one of the basic skills or orienting courses in ADR-- the Alternative Dispute Resolution course or seminar, and/or the Negotiations or Mediation seminars or workshops (often offered in alternating years)--in order to understand basic theory and elementary skills of problem-solving. These courses all draw on basic negotiation theory, represented in such works as Fisher & Ury’s Getting to Yes, Menkel-Meadow’s “Toward Another View of Legal Negotiation,” Howard Raiffa’s The Art and Science of Negotiation, Lax & Sebenius’ The Manager as Negotiator, and Ken Arrow, et al.’s Barriers to Conflict Resolution. Whether as a party, representative lawyer or third party neutral, the student of ADR will learn the basic ideal of creative, synthetic, as well as analytic, problem-solving, the logic of question- framing, client counseling, option development and Pareto-optimal solution generation, as well as advocacy appropriate for particular processes. The Multi-Party Dispute Resolution Seminar: Consensus Building and Other Negotiation Processes, which will be offered in future years, is an advanced course in simulated negotiations and deliberative democracy exercises in both domestic and international contexts.

Courses that enable students to learn experientially, such as clinical courses, and some externships and advanced seminars in particular substantive areas, allow students to develop a competency in particular skills as well as to apply these skills in a wide variety of settings. Students who expect to specialize in their practices can choose from a broad array of courses that apply dispute resolution skills in particular subject areas (labor, international relations and business, commercial, business and real estate law, environmental law, legislation, sports, entertainment, computer law, family law and advanced litigation).

Students who expect to be mediators or arbitrators should also consider taking one of the clinical programs that will enable them to hone advocacy, negotiation and client facilitation and counseling skills in particular settings.

Students of ADR should also consider complementary courses that will enrich their study of ADR processes such as Administrative Law, Employment Law and Labor Law and related courses, Environmental Law, Family Law, International Litigation, and litigation-based courses and public interest courses, depending on their fields of interest. Issues presented in Legal Profession and in the various courses and seminars in gender and race relations and equality will also be essential in understanding modern ADR issues (cross-cultural disputing, conflicts of interests, power imbalances, standards of quality control).

Given the highly interdisciplinary and contested policy issues about ADR and its uses (the role of lawyer and client in decision-making, ethical issues implicated in its use, separation of powers issues in which institutions decide what is to be made available to whom, with what resources), the study of ADR is a good vehicle for understanding the operation of legal institutions at a macro level, as well as providing an opportunity to learn some important skills at the individual level.

Full-time Faculty: Carrie Menkel-Meadow and others

Courses: Dispute Resolution; Negotiation, Mediation, Multi-Party Dispute Resolution

Substantive Courses: Advanced Criminal Law Practice and Procedure, Employment and Employment Discrimination Law, Environmental Law, Family Law, Labor Law, Insurance Law and Policy, Regulatory Design and Innovation, Representing Business Clients, Sports Law, Entertainment Law, International Business Transactions

Skills Courses: Environmental Law Clinic, Trial Advocacy