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

AuthorCarol Daugherty Rasnic
PositionProfessor of Law, Virginia Commonwealth University, Richmond, Virginia, U.S.A., and recent Fulbright Professor of Law, National University of Ireland, Galway
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
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.
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).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT