Alternative Dispute Resolution and the Public Interest- The Arbit
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Alternative Dispute Resolution and the Public Interest- The Arbit
Hastings Law JournalVolume 38 I Issue 2Article 131778Alternative Dispute Resolution and the Public Interest: The Arbitration ExperienceIx'o KanowitzFo Alternative Dispute Resolution and the Public Interest- The Arbitollow this and additional works at: https://repository.uchastings.edu/hastings_law_joumalÕ* Part of the Law CommonsRecommended CitationLeo Kanovs-Itz, Alftrzbitisv Dispute Rnữiutiữn and the PtMx Interest: The Arbitration Experience, 38 Hastings LJ. 239 (1987).Available at: https://repository.uchasti Alternative Dispute Resolution and the Public Interest- The Arbitngs.edu.'bastings lawJournal.' vol38,'Us2/1This Article Is brought co you for free and open access by the Lar Journal! at uc Hastings Schohnhip ReposiAlternative Dispute Resolution and the Public Interest- The Arbit
tory. It has been accepted for induuon in Hastings Law Journal by an authorized editor of VC Hastings Scholarship RepositoryAlternative Dispute ResoluHastings Law JournalVolume 38 I Issue 2Article 131778Alternative Dispute Resolution and the Public Interest: The Arbitration ExperienceIx'o KanowitzFo Alternative Dispute Resolution and the Public Interest- The Arbithanted with nonjudicial dispute resolution mechanisms: negotiation, conciliation, mediation, fact-finding, mini-trials, settlement, rent-a-judge, and arbitration, among others.* 1 Although most, if not all, of these devices have been with us for a long time, they have recently been applied in innova Alternative Dispute Resolution and the Public Interest- The Arbittive ways to new types of cases and have generated widespread enthusiasm among lawyers, judges, legislators, and members of the general public. The enAlternative Dispute Resolution and the Public Interest- The Arbit
thusiasm is not universally shared, however. Professor Owen Fiss of the Yale University School of Law is a major critic of the alternative dispute resHastings Law JournalVolume 38 I Issue 2Article 131778Alternative Dispute Resolution and the Public Interest: The Arbitration ExperienceIx'o KanowitzFo Alternative Dispute Resolution and the Public Interest- The Arbitle also decries, albeit less explicitly, all processes that assist, induce, or compel parties to avoid judicial resolution of theừ legal disputes. Indeed, Professor Fiss appears to treat settlement and ADR as roughly equivalent, or at least intimately related, concepts.3♦ Professor of Law, Universit Alternative Dispute Resolution and the Public Interest- The Arbity of California, Hastings College of the Law. A.B. 1947, City College of New York; J.D. 1960, University of California, Berkeley; LL.M. 1967, J.S.D. 1Alternative Dispute Resolution and the Public Interest- The Arbit
969, Columbia University.1.See generally s. Goldberg, E. Green & F. Sander, Dispute Resolution (1985); L. Kanowitz, Cases and Materials on AlternativeHastings Law JournalVolume 38 I Issue 2Article 131778Alternative Dispute Resolution and the Public Interest: The Arbitration ExperienceIx'o KanowitzFo Alternative Dispute Resolution and the Public Interest- The Arbitinafter National Institute]; Edwards, Alternative Dispute Resolution: Panacea or Anathema?, 99 Harv. L. Rev. 668 (1986).2.Fiss, Against Settlement, 93 Yale L.J. 1073 (1984).3.Id. Although there is considerable warrant for equating settlement and ADR as Professor Fiss does, individual ADR devices dif Alternative Dispute Resolution and the Public Interest- The Arbitfer in how they relate to settlement. Conciliation, mediation, and fact-finding, for example, are mechanisms that assist parties to settle their own dAlternative Dispute Resolution and the Public Interest- The Arbit
isputes. Final and binding arbitration, by contrast, represents the imposition of a solution by[239]240THE HASTINGS LAW JOURNAL[Vol. 38Settlement, accHastings Law JournalVolume 38 I Issue 2Article 131778Alternative Dispute Resolution and the Public Interest: The Arbitration ExperienceIx'o KanowitzFo Alternative Dispute Resolution and the Public Interest- The Arbithe absence of a trial and judgment renders subsequent judicial involvement troublesome; and although dockets are trimmed, justice may not be done. Like plea bargaining, settlement is a capitulation to the conditions of mass society and should be neither encouraged nor praised.4Professor Fiss’ critic Alternative Dispute Resolution and the Public Interest- The Arbitism of settlement and ADR appears to rest on three fundamental grounds: (1) his perception of potential conflicts between public and private interestsAlternative Dispute Resolution and the Public Interest- The Arbit
in the private resolution of disputes that are otherwise amenable to judicial resolution;5 (2) his apparent belief in the ability of courts to renderHastings Law JournalVolume 38 I Issue 2Article 131778Alternative Dispute Resolution and the Public Interest: The Arbitration ExperienceIx'o KanowitzFo Alternative Dispute Resolution and the Public Interest- The Arbitan the achievement of peace between the disputing parties.With his usual eloquence, Professor Fiss states his central thesis as follows:Adjudication uses public resources, and employs not strangers chosen by the parties but public officials chosen by a process in which the public participates. These Alternative Dispute Resolution and the Public Interest- The Arbit officials, like members of the legislative and executive branches, possess a power that hasbeen defined and conferred by public law, not by private aAlternative Dispute Resolution and the Public Interest- The Arbit
greement. Theh job is not to maximize the ends of private parties, nor simply to secure the peace, but to explicate and give force to the values embodHastings Law JournalVolume 38 I Issue 2Article 131778Alternative Dispute Resolution and the Public Interest: The Arbitration ExperienceIx'o KanowitzFo Alternative Dispute Resolution and the Public Interest- The Arbitot discharged when the parties settle.6Although Professor Fiss does not expressly mention arbitration in his critique of ADR, it is clear that it is not excluded from the range of his criticism.7 However, he does not examine any arbitration cases for the light they might shed on his central thesis. Alternative Dispute Resolution and the Public Interest- The ArbitThe major purpose of thisa third party. In this respect, arbitration resembles judicial dispute resolution to some extent. At the same time, arbitratiAlternative Dispute Resolution and the Public Interest- The Arbit
on shares a basic characteristic of settlement and other alternative dispute resolution devices: Parties who submit their disputes to arbitration effeHastings Law JournalVolume 38 I Issue 2Article 131778Alternative Dispute Resolution and the Public Interest: The Arbitration ExperienceIx'o KanowitzFo Alternative Dispute Resolution and the Public Interest- The Arbitbitration of claims that would not have been subject to predispute waiver of the right to a judicial tribunal. See infra text accompanying notes 50-54.4.Fiss, supra note 2, at 1075.5.Implicit, although not expressed, in Professor Fiss’ preference for adjudication over settlement and other nonjudicia Alternative Dispute Resolution and the Public Interest- The Arbitl dispute resolution mechanisms is the assumption that the disputed matter is capable of judicial resolution. Even with regard to disputes that are noAlternative Dispute Resolution and the Public Interest- The Arbit
t subject to judicial resolution, however, the decision to employ alternative dispute resolution techniques can significantly affect public interests.Hastings Law JournalVolume 38 I Issue 2Article 131778Alternative Dispute Resolution and the Public Interest: The Arbitration ExperienceIx'o KanowitzFo Alternative Dispute Resolution and the Public Interest- The Arbitior to suit.” Id. at 1073. Although he docs not expressly discuss arbitration in his 1984Hastings Law JournalVolume 38 I Issue 2Article 131778Alternative Dispute Resolution and the Public Interest: The Arbitration ExperienceIx'o KanowitzFoGọi ngay
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