By Will Pryor
Alternative Dispute Resolution (ADR) is a field that invites parties to a dispute to pursue resolution outside the judicial process. Mediation, a nonbinding, informal ADR process facilitated by a neutral third-party, is sometimes referred to as a “win-win” opportunity, where the parties control the outcome of the dispute and negotiate an outcome that is acceptable, if not ideal. But in the form of ADR we refer to as binding arbitration, eventually there is a winner, and a loser—at least that is how it is supposed to work. As a consequence of a judicial narrowing in recent years regarding the grounds for setting aside or vacating arbitration awards, lawyers are searching high and low to find creative ways to achieve vacature. This year we have an active area of appellate activity, challenges to arbitration awards for “evident partiality,” and arguments that arbitrators “exceeded their power”.
This is the sixth installment of an Annual Survey chapter on ADR, the first installment being published in 2008. There can be no disputing that in the past six years mediation has continued to saturate the legal marketplace, and the use of arbitration throughout the state of Texas has skyrocketed—as has the controversy that surrounds it. Appellate decisions abound. In this survey piece we will examine a few of the more intriguing and important cases in ADR, particularly cases pertaining to arbitration. For the first time we will also examine the development of an ADR process unique to the insurance industry—the insurance appraisal process.
Will Pryor, Alternative Dispute Resolution, 1 SMU Ann. Tex. Surv. (2014)