ADR class 2

time - waiting for the appellate process is not always feasible.

expedited resolution is not always appropriate for both parties.
identify the interests of the person who is reluctant to quick resolution.

when people spend more time fighting, they become more adversarial.
ephemeral reactions to the motions, discovery, etc makes parties get
even angrier at each other. there's name-calling and accusations, etc.
and then that's coupled with increasing legal fees, which makes people
feel even more upset and strapped.

what does it cost the litigant to go to court?
- cost of attorney time and fees
- cost of training junior associates
- high fees for partner's time
- time for discovery
- may be too expensive for middle class to litigate effectively
- how do you tell a client that they may be correct, but that the
cost to litigate will exceed the value of the injury?
- option: go to the AG or consumer affairs, if its some kind of consumer fraud
- option: "if this can't be resolved, we have to find a way to manage this"
- have to focus on the client's ability to pay!!

uncertainty of the result: many times people will invest in a litigation
and will think that at the end of the litigation, they will prevail --
but what if that doesn't happen? what if the person is not restored to their
original position? if they had realized they might lose, they might have
made different choices. additionally, many contracts have a
"prevailing party" clause, which means

example:
stiverson v. manhattan -- state housing agency interpreted statute in a certain way,
such that a rent-stabilized building can be handled as luxury-decontrolled, and
rented at fair market rate. no tenant had challenged the interpretation over 17 years.
court of appeals have dissented that the interpretation is contrary to the
plain meaning of the statute, even though there's 17 years of reliance on the wrong
interpretation. the devaluation is approx 4 bill. and investors in this building
include pension funds


conflicts of interests is a growing industry problem.

adversarial approach can have unintended ramifications.
good faith relationships can be poorly affected by adversarial process,
like relationships to your kids, employer/employee relationships,
business relationships like with suppliers,

"best attorney wins" -- perception management that getting the most
expensive/ best known lawyer will give a big advantage

expertise of the judge: should that influence arbitration or not?

adr allows you to hand-pick the judge, which allows you to build into
the arbitration agreement that there's a specific person that you want to
arbitrate the agreement. this is particularly used in labor agreements.
but you can be creative and put provisions for things like
- minimum connections
- expertise of both customer and management side
- knowledge of the current work environment
- agreement to stay late, work at certain hours
- ability to put people into a more comfortable frame of mind
** lack of confidentiality in the courts **
the only limit is what you can get the other side to agree to.