Introduction
A legal court processes adjudicated by a judge is regarded as the primary platform of dispute management. However, various forms of alternative dispute resolution (ADR) process are developed to provide substitute yet effective avenues in managing disputes. McGregor demonstrates that the ADR process fall into a two main subunits that are 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 to manage 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 to the effectiveness of ADR models. They argue that ADR process, such as mediation, when institutionalized with the consent of parties involved can enhance to formal proceedings (McGregor 612). Such process and steps can limit dominance of lawyers in a court process and the significant publicity of matters, which may be private in nature. Although litigation under court process have been utilized conventionally as a model of dispute resolutions, contemporary approaches, such as ADR, can enhance understanding and cohesion among parties. In addition, the approaches are less costly, consume less time, and often attract higher acceptability, and hence should be encouraged to manage disputes across various disciplines.
History of Mediations as an ADR Model
ADR has a long historical background in the American justice system. McManus and Silverstein aver that ADR model is an innovative mechanisms employed to manage disputes outside the legal framework. The authors explain that ADR models are rooted in common law traditions and trace their origin to the traditional English legal practice. McManus and Silverstein illustrate:
As early as the Norman Conquest, legal charters and documents indicate that English citizentry 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 own 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. (102)
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 were a threat to harmony and led to a divisive society. McManus and Silverstein elucidate that the conventional process 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 employed from the pre-colonial ages to the current 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 post independence era was the 1790 Patent Act provided by congress to arbitrate 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 post-colonial U.S., the formal acknowledgement and the institutionalization of ADR systems occurred in the late 19th century. Accordingly, the authors posit that in early 1898, the Congress approved mediation model and applied it in New York and Massachusetts for settling collective bargaining rows. McManus and Silverstein restates 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, which were utilized in the 19th century, have remained active and progressively established in the professional practice to date.
The 20th century provides a better perspective for the adoption and utilization of mediation as an ADR. McManus and Silverstein clarify that Vvarious states in the U.S. acknowledged mediation models and recognized their effectiveness in dispute resolutions. For instance, in 1920, the 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 efforts 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 revolutionary developments to launch mediation was the authorization by the judicial courts to enforce the ADR models. The authors maintain that the formation of American Arbitration Association (AAA) in 1926 was a climax for ADR systems by providing a framework and guidance to parties and arbitrators who participate in the model. The acknowledgement 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.
Currently, Arbitration is an essential practice in managing conflict and disagreement in the U.S. Arbitration exists in major levels of the legal practice.. The authors add that law firms utilize certified AAA attorneys, retired judges, and ADR experts in mediation, arbitration, and negotiations to parties under dispute (McManus and Silverstein 102). For instance, in 1979, the California based judge Warren Knight started an organization called the Judicial Arbitration and Mediation service and dedicated it to render services to businesses, law firms, and individuals in need of ADR services (McManus and Silverstein 102). Further, in 1995 Martindale-Hubbell published directories for ADR practitioners and the unique area of expertise, thereby 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.
Forms of ADR Practiced in the U.S.
Different forms of ADR exist in the American jurisdiction. The varied 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 subcategorized into three differentiation of evaluative, facilitative, and adjudicative (102).
Adjudicative ADR
The adjudicative system employs a quasi-formal facilitator who serves as a decision maker or adjudicator. The model applies to parties with limited will to negotiate, but seeks to evade formal litigation hence the involvement of an impartial third party (McManus and Silverstein 102). Although adjudication models within the U.S. judicial systems provide mandatory decisions, adjudicative ADR provides options that are non-binding, obligatory, or merely advisory. Arbitration is one of the forms of adjudicative ADR generally conducted by either a single or a panel of three arbitrators (McManus and Silverstein 102). Another significant sub category of adjudicative ADR is the neutral fact finding model, which occurs when parties fail to agree about facts. In such a scenario, the parties can employ the services of a professional to inquire into particulars of their case before determination. Occasionally, trial judges have also ordered that the parties be processed by appearing before a neutral fact finder for evaluation of factual issues and subsequent determination.
Evaluative ADR
Evaluative ADR occurs when litigants and lawyers develop facts and receive feedback about the merit or demerits of arguments and claims in a case. McManus and Silverstein explain that parties engaged in the model are usually not willing to discuss settlement thus an evaluation helps to contextualize the bargaining power of each party (102Therefore, 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 evaluations (McManus and Silverstein 102In peer evaluation, attorneys of disputing parties appear before impartial panels of experienced professionals to present arguments for processing. Judicial evaluations employ the services of an emeritus judge to provide feedbacks about the merits of the case to the parties (McManus and Silverstein 102). While, Summary Jury Trial or the Lay Evaluations takes the form of an expedited jury trial. Upon 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 102). The process enables parties to have a preview of the likely direction of a case verdict for further processing. Facilitative ADR encourages a neutral to serve as a referee for the parties. The model emboldens dialogues, discussion, and settlement. The three common forms of the models are mediations, consensus building, and conciliation
Mediation as an Alternative Dispute Resolution Process
Mediation process is an important part of the alternative dispute resolution model. Menkel-It a process that involves an unbiased and neutral third party into a dispute to facilitate a negotiated consensual agreement among parties ( Menkel and Meadow 2). Notably, the authors illustrates that the decision rendered by the arbitrators are 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 to the judicial processes. Mediation and arbitration also help parties to identify real issues, develop discussion models, and identify options for settlement. According to McManus and Silverstein, the objective of mediation is to deliver a win-win situation that enable parties to obtain satisfactory remedy (102Further, 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 the delivery of justice.
Arbitration Case
In the case below:
Deborah L. Pierce, an emergency room doctor in Philadelphia, was optimistic when she brought a sex discrimination claim against the medical group that had dismissed her. Respected by colleagues, she 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 that 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 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 decorum 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 prevalent in medical disputes are often difficult for the generalist attorneys or judges and juries to understand. However,medical disputes are based on inflamed 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 compared to generalist juries or judges when delivering rational decisions (1823). Nonetheless, Shieh asserts that whatever advantage arbitrators hold over juries and judges in 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 advices that such features should be well-thought-out when assessing the accuracy of decision-making in an arbitration framework. The argument demonstrate that given the opportunity to identify an impartial neutral, Deborah would have welcomed the determination positively,
The Nature of the Case
The nature of the case presented was an injury on the person of Deborah L. Pierce by her male colleagues. The sexual harassment case had significant impact on the professional practice since it defined future workplace security for female medics against irresponsible male counterparts. The outcome of the case had significant 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 demonstrate 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 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). Various 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, individual who depend of arbitration for livelihood are likely to arrive at verdict that advantage institutions to be considered for future sessions (Shieh 1824). Accordingly, Shieh clarifies that healthcare practice have pre-institutionalized arbitration process signed on requisite forms that compel victims of medical malpractice and negligence to participate in mandatory arbitration process (1824). The illustrations by the authors are best example ofda iscrimination case of Deborah L. Pierce verses the medical group. In the case, the complainant felt defeated since substantial evidence was destroyed and a witness compelled to retract a statement as earlier mentioned. Although arbitration have been proven beyond any reasonable doubt to deliver effective 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 to consider individuals who are their clients (Silver-Greenberg and Corkery par 9). Such scenarios have rendered the process of arbitration ineffective, and hence, ADR process may fail to deliver benefits to the involved parties. Particularly, parties within formal institutions such as employments and those who access service within primary healthcare facilities find themselves signing arbitration commitment that deny them justice during accidents and other misfortunes or negligence they may encounter during the uptake of professional services.
Cost in Arbitration Cases
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 pays $ 200,000 as legal costs for 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 the case in a formal court of law. The authors affirm that the last 10 years has witnessed, thousands of businesses such as big corporations to storefront shops utilizing arbitration as an alternate model of justice. However, the underlying rules tend to give the defendants undue 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 process or arbitration.
Cost is a significant item in an arbitration processes. The National Arbitration Forum and 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 addresses 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 a mutual agreement within 60 days. However, the author illustrates that claims of less than $200,000 as a single 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. Cost calculation is, therefore, a significant part of an arbitration process and a subject of discussion in the preliminary stages for consensus building attained on the models and terms of payments.
Effectiveness of the ADR Process
Mandatory arbitration passages are ubiquitous in various industries, especially in the healthcare sector. Hospital and other related institutions are developing mandatory arbitration clauses within the engagements of clients. It implies that majority of engagements, mishaps, or medical malpractices will follow mandatory arbitration practices for dispute resolution. Sachs demonstrates that client or victims are never aware of the objective to their right to a fair judicial process or oversight in the event of disputes when they sign forms or contracts (117). Thus, the preference to arbitration over court process determined by a jury or judge should be studied. Therefore, it is evident that mandatory arbitration give undue advantage to health care providers, institutions, and other players at the expense of clients.
The effectiveness of arbitration can be understood from the Korean case study. Park et al. explain that courts in Korea preferred arbitration to judicial trial for medical 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 reputation of healthcare professionals (62). However, the Korean legal and medical sector should promote further utilization of arbitration models in order to enhance professionalism in the medical field and reduce legal risks from 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 cases 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.
Futhermore, fairness plays a key role in an arbitration process. Welsh describes the position of the American arbitration association (AAA) on the scales of equity and fairness in an 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 costs adjustments to consumer and the consideration whether the parties have the capability to manage the fees chargeable for a procedure. However, the protocol also supports the utilization of mediation to manage the 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 effectiveness of the process (Welsh 834). The case of Deborah is ascenario 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 independent third party is a critical aspect to 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 ruling, the panel concluded that Kaiser had violated its policies for appointing partial arbitrators in a majority of medical malpractice mediation. Such practices from arbitrators have led to serious consequences, leadingto a collapse of the processes. The case of Deborah where the appointed arbitrator was seen engaging in a friendly conversation with the defendant are flawed practices that undermine justice for 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 interest of the appellant, 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 over 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 higher cost as settlement fee.
Conclusion
ADR models such as arbitration and mediation are entrenched as legitimate measures to manage the delivery of justice to majority of disputes across the world. In the U.S., various attempts are made through progressive laws to adopt arbitration as a legitimate practice. Currently, several institutions take advantage of the enabling infrastructure to develop perspectives, such as mandatory arbitration for employee and employees, which are achieved through signed contracts and on hospital prescriptive forms. From the literature analysis and the case studies, it is evident 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 pointed out to a 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 decision as it is the case with litigations through a formal court of law. The case of Deborah illustrates a failed arbitration process affected by bias. Notably, the case of Korea underpins the success of arbitration models to manage disputes between parties. Therefore, for the anticipated benefits of arbitration to be realized, it is important that the principles, practices, and procedures of arbitration be enforced. Further, it is important that changes with costs and settlements be managed through a framework that is entrenched in fairness and equity.
Works Cited
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.” 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. www.scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1813&context=jdr
Shieh, David. “Unintended Side Effects: Arbitration and the Deterrence of Medical Error.” NYUL Re, vol. 89,2014, pp. 1806 – 1835. www.pdfs.semanticscholar.org/4472/5e3ca82c4582601b0ae44724e81b30ce550c.pdf
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
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. www.digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1361&context=olr
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