Chapter 04 - Alternative Dispute Resolution
1. Partnering is a process that establishes supportive relationships among the parties to a
contract to head off disputes before they occur.
2. Partnering is best used when a contract involves complex interrelationships among a
wide variety of different parties such as construction contracts.
3. Partnering attempts to deter the disorder that can arise during a dispute by drawing up
certain ground rules that all the parties agree to observe.
4. The parties agree to handle problems according to some ADR technique rather than
5. The parties also agree to deal with one another in a fair manner within the confines of
their legal relationships.
B. ADR Contract Clauses
1. An ADR contract clause will specify that the parties to the agreement have promised
to use an alternative dispute resolution technique when a disagreement arises.
2. Unlike partnering, which is best suited to long-term construction contracts, ADR
clauses can be included in most contracts.
3. ADR contract clauses may be either optional or compulsory.
4. Clauses should specify the types of disagreements that will be submitted to ADR, the
ADR technique or techniques that can be used, the scope of discovery allowed, the
substantive law and the procedural rules that will be followed in the proceeding, the
remedies that will be authorized, the grounds for and the procedure to follow in an
appeal, and the methods on enforcing an award.
5. Courts prefer that ADR clauses be clear and precise.
6. Courts to sensitive to any clauses, conditions, or procedures that are either
procedurally or substantively unconscionable.
C. Settlement Week
1. During a settlement week, a court’s docket is cleared of all business except for
2. Prior to the opening of settlement week, all attorneys with cases pending before the
court are asked to choose which of those cases might be best handled by a mediator.
3. Judges are permitted to nominate cases for mediation during settlement week.
4. A list of volunteer mediators is complied, cases are matched with mediators, and a
schedule is established.
5. Occasionally, some cases are presented to an arbitration panel.
D. Negotiated Rule Making
1. Negotiated rule making (reg-neg) is a process by which an agency invites the people
and the organizations to be affected by a new rule to have input into the writing of
2. The objective of negotiated rule making is to avoid disputes before they have a
chance to blossom.
3. A team effort is made resulting in a proposed rule that is submitted to the rule-making
4. Negotiated rule making cannot be used in all situations.
E. Post-Appellate Procedures
1. Post-appellate procedures involve taking a case that has been rejected or dismissed by
a domestic court to an international organization.
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