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Hastings Law Journal

Abstract

In recent years we have witnessed a dramatic upsurge in litigant use of alternative dispute resolution (ADR) mechanisms, both inside and outside the traditional litigation system. This explosive growth in ADR utilization presents courts with a fundamental problem. The cornerstone of ADR processes, and in particular, ADR process design, is party consent. In general, parties are free (on a shared consent basis) to shape the ADR processes they employ to suit their perceived needs. When disputants request that courts use dispute resolution tools, courts have, for the most part, adopted this precept, willingly accepting efforts by "managerial litigants" to shape the processes used to decide their disputes. The question of whether, and to what extent, this type of litigant control over the dispute resolution process in the judicial setting is appropriate, however, has been largely ignored. This Article addresses that question, and concludes that reliance on notions of party consent would provide insufficient protections against the threat to courts' institutional integrity non-traditional requests for judicial action may present. The Article builds on existing case law regarding requests for non-traditional judicial involvement predicated on party consent (e.g., requests for summary jury trials, consent decrees, or vacatur), to suggest a twoprong test courts should implement in analyzing such requests in the future. First, the court must consider whether Congress granted it the authority to approve the parties' request. Second the court must explicitly consider whether approval of the parties' request will undermine the institutional integrity of the courts. Application of this test to the variety of requests parties are making both within and outside the ADR context will allow courts to create a standardized framework for evaluating party requests while, at the same time, ensuring that the court's integrity as an institution is maintained.

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