Introduction
Alternative dispute resolution is an approach to dealing with cases in the American Justice System. It involves the use of arbitration rather than litigation. Litigation is adversarial but alternative dispute resolution seeks a consensual approach to resolving things. This paper will critically analyze dispute resolution in the American legal system in general and then in the context of two states – California and Virginia.
There are several ADR techniques including binding arbitration, conciliation, cooperative problem-solving, facilitation and mediation. Federal issues are handled in federal courts. This include cases that cover different states or jurisdictions as well as bankruptcy cases, cases involving the US government, or the Constitution. The main courts in the federal system include trial courts (US District Courts) and above them, there are the appellate courts (US Courts of Appeal). The court of last resort is the US Supreme Court.
However, in state jurisdictions, there are various limits and parameters set by the state legal system. This helps to ensure that each state can maintain its ADR system in the best way and form possible.
In California, there are federal, state and tribal courts that are operational in dealing with alternative dispute resolution. Thus, if any ADR ruling is seen as flawed, it is presented to a court by the aggrieved party. The Californian state court is made up of the Superior Courts which are the Courts of Appeal and the Californian Supreme Court. There are superior courts in every county in California. These superior courts apply relevant law to evidence and their scope include civil, criminal and other municipal cases. The threshold of these courts involve cases of up to $25,000. Anything above $25,000 is considered to be serious and can be presented to the Court of Appeal.
The Californian Courts of Appeal do not handle new cases. Rather, they look at the case and its relevant facts and then pass a judgment on the ADR process. In cases any party is not happy with the ruling of the Court of Appeal, it is presented to the Californian Supreme Court as a court of last resort.
The Californian court system undertakes Administrative Hearing in ADR cases. This is done by the Office of Administrative Hearings. This include cases relating to licensing and other matters of a specialized nature.
Virginia on the other hand has a Dispute Resolution Services which is a branch of the Virginian Supreme Court. Virginia’s system is centralized and it is centered on the Department of Dispute Resolution Services. This is in contrast with the Californian system which is opened and most people are to carry out things with very little connection and linkage to a central reference point.
The Virginia system is result-oriented and it seeks to reduce the cost of disputes as well as utilize a better method of managing cases. There is a range of formal and informal methods that come together to define the framework within which ADR is done in the state.
Since Virginia’s ADR system is centralized, there are rules that must be followed in each ADR process. Where there are divergences, a person can often raise an objection through the Department of Dispute Resolution Services and get it resolved. This makes it more structured and less opened to uncertainties.
The Virginian model is one where judges can refer to a case to ADR. This is unlike the Californian system where people choose to use ADR and go to the court for further interpretation. Thus, in Virginia, it is a top-bottom system whereby cases are moved out of the formal system into the ADR system. In California, it is a bottom-up system whereby people use ADR and seek formal interpretations from the courts. However, in Virginia, parties must voluntarily agree to use ADR. If they refuse, they can still litigate.
References
US Office of Personnel Management. (2016, December 8). Alternative Dispute Resolution: A Resource Guide. Retrieved from OPM: https://archive.opm.gov/er/adrguide/Section1-a.asp
Virgina State Courts. (2016, December 2). VIrgina Court Connected ADR. Retrieved from Virginia Supreme Court: http://www.courts.state.va.us/courtadmin/aoc/djs/programs/drs/mediation/resources/overview_and_statistics.pdf
