Alternative dispute resolution rather than litigation? A look at current irish and american laws

• Author: Carol Daugherty Rasnic
• Position: Professor of Law, Virginia Commonwealth University, Richmond, Virginia, U.S.A., and recent Fulbright Professor of Law, National University of Ireland, Galway
• Pages: 182-198

ALTERNATIVE DISPUTE RESOLUTION RATHER

THAN LITIGATION?

ALOOK AT CURRENT IRISH AND AMERICAN

LAWS

CAROL DAUGHERTY RASNIC*

Discourage litigation. Persuade your neighbor to

compromise whenever you can … As a peacemaker the

lawyer has a superior opportunity of being a good man.

There will be business enough.1

I. INTRODUCTION

President Lincoln, himself a lawyer, was addressing his peers, but

courts also have the opportunity to encourage settlements. Not only

do judges have the opportunity, but they also have a source of

motivation, since dockets are increasingly overloaded.

Aburgeoning area of American commercial law is alternate

dispute resolution (ADR), the term encompassing recognized

methods of pre-trial—or a substitute for trial—settlements. The two

most-often used methods of ADR are mediation and arbitration, and

both avoid much of the cost and time consumption involved with

litigation. Although ADR is clearly not a novelty in Ireland, where it

is being used increasingly, the applicable law is not yet developed to

the extent as is the case in your trans-Atlantic neighbor.

This article will assess the status of the American statutoryand

judicial perspective on ADR alongside the current situation in

Ireland, clarifying the positives and negatives of these ways of

resolving legal disputes as compared and contrasted with courtroom

litigation. The “rush-to-the-courtroom” syndrome that has been

characteristic of Americans appears to the author to have been

adopted by our Irish brethren, and both the Oireachtas and the Irish

courts might benefit from studying how ADR has given courts in the

182 [4:2Judicial Studies Institute Journal

*Professor of Law, Virginia Commonwealth University, Richmond, Virginia, U.S.A., and

recent Fulbright Professor of Law, National University of Ireland, Galway. Professor Rasnic

was also Fulbright Professor of Law at Friedrich-Alexanders Universitaet, Erlangen, Germany,

1992-93; and Fulbright Distinguished Professor of Law at Queens University Belfast, 1998.

1Abraham Lincoln, American President, 1861-1865, Pine, J. (ed.), Wit and Wisdom of

American Presidents,(Dover Publications, Inc., Mineola, New York, 2002), p. 27.

U.S.A. some much-needed and welcome relief.

Mediation will be summarily explained, but the primary focus is

on arbitration. The procedure and finality of the latter equates it

more closely with courtroom disposition, but without the expense

and time generally associated with litigation.

II. NEGOTIATION, MEDIATION AND ARBITRATION IN

GENERAL

The two basic categories of ADR are mediation, also referred to

as conciliation, and arbitration. Negotiation is the term referring to

the efforts of the parties themselves to resolve an area of contention

before resorting to calling in a third party and, as such, naturally

precedes ADR or litigation.

Mediation introduces a neutral third party when negotiations

have failed. The role of the mediator is not judgmental, nor does

he/she take a position on behalf of one party or the other.The

underlying principle is to permit the parties themselves to make the

ultimate determination resolving the issue, with the mediator’s

conciliatoryassistance. His role, then, is to facilitate, rather than to

impose, a settlement. The process of mediation is not adversarial, so

it does not resemble an actual trial. This feature has been cited as a

negative, since parties are not afforded the protections afforded by

rules of evidence and/or constitutional rights.2

Moreover, there is no right to counsel during mediation. The

advantages echo what in some situations would be deemed

disadvantages, so employing mediation is largely dependent upon

the circumstances of each case. For example, the simplicity of the

mediation process and the breadth of autonomy of the parties to

determine the outcome might not be attractive features in the

instance where one party is weaker than his counterpart and, thus,

possibly coerced into settling in the situation in which he does not

have the benefit of counsel and/or rules of evidence. When the

disputants are of equal bargaining power and the issue is not

particularly acrimonious, they would be moreprone to achieve

2004] 183Alternate Dispute Resolution Rather Then Litigation?

A Look At Current Irish & American Laws

2Significantly, unlike Ireland, where juries are available in civil trials only in defamation cases,

American constitutional law assures the right to trial by jury in civil cases when the amount in

controversy is at least twenty dollars ($20.00). Constitution of the United States, 1787,

Amendment VII (1791).