Contract and Conflict Management

Despite the widespread use of mediation and other dispute resolution processes in the United States today, many members of the bench and bar - including those responsible for the drafting, interpretation and implementation of consensual dispute resolution provisions still lack a fundamental grasp of the process choices available to contracting parties. More often than not, their information is fragmentary, their perceptions framed by anecdote and hearsay in lieu of personal experience. Transactional lawyers, those in the best position to offer advice and counsel in the structuring of contractual conflict management options, tend to be less well informed than colleagues in what are traditionally know as litigation departments. Opportunities may be squandered or abused, and clients and third parties ill-served. Venturing into a complex and changing landscape of evolving statutory and case law, moreover, even sophisticated scriveners may face unwelcome surprises when their hothouse variety ADR provisions are unveiled in court. Lacking a clear road map, courts often rely on the tools at hand. This frequently means resorting to the relatively well-trodden highways and byways of federal and state arbitration law, perhaps without thoughtful consideration of the nature and purposes of the statute and the inherent differences between binding arbitration - the intended focus of such legislation - and other intervention strategies now enshrined in contract. This article is intended to help legal practitioners, judges and contracts scholars to better understand these alternatives, especially arrangements involving third party “interveners” - mediators, arbitrators, and others assigned to help manage or resolve issues or disputes. An important subtext of the discussion is the abiding tension between the need for judicial intervention and the desire for party autonomy implicit in private conflict resolution provisions. Special attention is given to the growing universe of agreements that implicate significant disparities in bargaining power, and the particular concerns associated with private justice under adhesion contracts