Ware and Riskin discuss rise of alternative dispute resolution
A proud federalist himself, Stephen J. Ware presented to the Levin College of Law on Feb. 3 his vision for how the rise of alternative dispute resolution can help improve the allocation of time and resources in the traditional court system. The presentation was sponsored by the Federalist Society. His presentation titled, “Should Trials Vanish?: The Rise of Alternative Dispute Resolution,” was followed by commentary by Chesterfield Smith Professor of Law and Levin College of Law Professor Leonard L. Riskin.
Ware is a professor of law at the University of Kansas School of Law, where he teaches courses in alternative dispute resolution, bankruptcy, contracts, sales, and secured transactions. Ware received his Juris Doctor from the University of Chicago Law School and has since penned two books, numerous law review articles and other publications, and has served as a professor and visiting professor at several law schools nationwide.
Although Ware did not actually argue that trials should vanish, he instead advocated for the elimination of publicly-funded trials for wealthy corporate parties to better re-route resources to the parties in the greatest need, such as criminal defendants awaiting freedom and tort victims awaiting relief.
Ware explained that the term “alternative dispute resolution” applies to three processes: negotiation, mediation, and arbitration. When there is a dispute, Ware explained, the parties are faced with whether to litigate or settle via negotiation or mediation. In criminal trials, plea bargains serve the function of avoiding litigation in favor of two oppositional parties working collaboratively to reach a mutually satisfactory resolution, Ware said.
Ware declared that while trials would theoretically vanish if all parties in all cases chose to settle, he is under no illusion that this will occur.
Conversely, Ware stated that if all disputes were settled by trial, the justice system would be congested far beyond its capacity to function.
Therefore, “settlement is a practical necessity for our system to work,” Ware stated.
Ware conjured the popular adage “justice delayed is justice denied” and suggested that if unlimited resources were allocated to the court system, then the administration of justice would occur more efficiently and more swiftly and all parties could be afforded a trial. Realistically, however, it is the increased use of alternative dispute resolution that may help aid the swift administration of justice, Ware said.
He posited that then innocent criminal defendants may be freed sooner, civil plaintiffs may be compensated sooner, and the quality of available evidence could be preserved. Also, litigation would become less expensive since it would be conducted over a shorter period of time. Additionally, expedited litigation would reduce the use of what Ware termed the “wait ‘em out” strategy often used by more resourceful litigants to the detriment of their smaller, less wealthy opponents.
According to Ware, the question should not be “who gets a trial?” but rather “who gets adjudication subsidized by the taxpayer?”
Ware advocated rearranging court dockets to give priority to criminal cases and civil cases which involved individuals rather than wealthy corporations, to encourage businesses to turn to arbitration. Ware acknowledged that it would likely be unconstitutional to tell such corporations that trials were not available to them at all, but that he saw no constitutional barriers to reordering court dockets such that their cases could simply be placed “at the back of the line” behind other criminal and tort cases.
Riskin called Ware’s proposal generally a “terrific idea” and agreed that Ware’s plan could reduce the strategy of delay which is often used to drive up the cost of litigation to try to force one side to settle. Riskin, however, focused on the benefits of alternative dispute resolution beyond the financial benefits that Ware discussed, including creating a less traumatic process that includes non-legal interests and concerns, such as the emotional well-being of the parties.
The most controversial issue among academics, with respect to the law of arbitration, Riskin stated, is that many people unwittingly consent to arbitration via the purchase of a computer, car, or other product without realizing that within the fine print of their paperwork is a binding arbitration clause.
Following Riskin’s remarks, Ware concluded his presentation with the suggestion that arbitration could also aid in the administration of justice since parties can choose an arbitrator with special expertise and an arbitrator can go to the site of the dispute and view evidence that would not be available for first-hand viewing to judges and juries.