Document Type

Article

Publication Date

2005

Abstract

Traditionally, academics specializing in ADR and civil procedure have not tended to deal with each other's issues. The typical civil procedure course focuses on litigation, and at best throws in a few classes on mediation and negotiation. Similarly, the typical ADR course devotes little or no attention to litigation, law, courts, or administrative institutions. Thus, the two disciplines are taught quite separately. Further, this separation is not equal. While students are required to learn about litigation, and are also offered many additional litigation electives, the ADR curriculum is almost always purely elective, and the classes are much smaller. Yet, the relationship between civil procedure and ADR in practice is far different than it is in the academy. In the real world there is a blending between litigation and other dispute resolution approaches. Whether one practices in federal court, state court, or before administrative agencies, "litigators" are now ADR practitioners. Equally, ADR practitioners are typically also litigators, unless they practice exclusively as neutrals. As academics, in our teaching and our writing, we need to greatly improve the extent to which we recognize the interrelationship between ADR and litigation. The Article offers specific suggestions as to how we can improve our litigation and ADR courses. The Article also urges that by recognizing the interrelationship between ADR and litigation we can better analyze the multiple appropriate purposes of our system of justice.

Publication Citation

80 Notre Dame L. Rev. 681 (2005).

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