Arbitration & Mediation

DRI Representative Trashes Arbitration in "For the Defense"

By Christopher B. Hopkins, Esq.

In the April 2008 of the publication, "For the Defense," the Texas representative to the Defense Research Institute claims that arbitation and ADR "meant simply ambush your adversary and steal his cattle, wife and daughters, and be done with it." This anachronistic sentence is probably meant to be more Texan than misogenistic, but it is an interesting viewpoint coming from a DRI representative.

"For the Record" is a publication directed towards DRI members, who are primarily insurance defense counsel. Thus, it is not widely available for lawyers whose practice is not focused on defense work. But we can summarize "The Best Alternative Dispute Resolution" to be an article referencing John Adams (recent movie and the historical person) and concluding that, "[w]e ought to be outraged about this [perceived criticism of the jury system], if for no other reason, the jury is composed of hard working, civic-minded American people." ADR is then suggested to be one method to "curtail or do away with the jury system..."

Without question, the author is entitled to his opinion, which is a popular one as we've seen in pending legislation and in recent publications. Indeed, it is well expressed in the article. It seems odd, however, to be the opening piece in a DRI publication given that (a) the DRI has an ADR section which is a proponent of alternative dispute resolution, (b) defendants typically are the ones enforcing arbitration, and (c) "For the Record" has run several pieces given advice about how to enforce arbitration. As an example, last year I gave a presentation to the Florida Defense Lawyers Association explaining why plaintiffs fight against arbitration and how the court battles over enforcement tend to work.

The pendulum may be swinging towards the concern of arbitration over-use however I am unaware of any serious suggestion that arbitration was intended "curtail or do away with the jury system." The complaints about the use of arbitration in consumer contracts is something worth considering. That said, arbitration is used all the time in major league sports and financial investment disputes without a whiff of disapproval. To view ADR as an attack, rather than just an alternative, to the jury system oversells the position. It's also odd to hear coming from the lawyers (and their clients) who write and enforce those contracts. I'm guessing the article ran to represent different viewpoints within the organization.

As a side note, I've been recommending to clients for nearly two years to re-consider their arbitration clauses to instead require early mediation and, if they so choose, a jury-waiver clause so that disputes are heard by the trial judge. This is not so much for an anti-populist reasoning as it is for other practical reasons: (a) enforcing arbitration can cost $15,000 or more, (b) arbitration clauses need to be regularly revised and updated, (c) non-jury trial settings are easier to come by, (d) predicting the outcome with a judge (i.e., assessing risk) may be easier than with jurors who are unseen until the end of the case, and (e) most judges won't allow endless discovery if the matter is going to be heard by the bench.

Full post as published by Florida Arbitration Law on June 03, 2008 (boomark / email).