By Will Pryor
This article addresses developments during the Survey year in mediation and arbitration. It also discusses possible legislative activity in the newly evolving field referred to as “collaborative law,” and its future application in civil disputing beyond family law.
Alternative Dispute Resolution (ADR) is now a well-established field of academic study, and permanently engrained in our civil judicial system. Only fifty or so years ago, there were virtually no ADR course offerings at any law school in the United States. Today most law schools offer courses such as negotiation, mediation, and arbitration. These courses are often offered as “practice skills” courses in curricula that require students to complete a certain number of course hours in subjects that are distinguished from more academic and traditional course offerings. This newfound emphasis in American legal education on dispute resolution reflects an acknowledgement that resolving disputes is something that lawyers actually do in the daily practice of law. This emphasis is as it should be. All law students benefit from training and practice in negotiation skills, something they will do every day in their practice. Increasingly, it is fair to suggest to law students that, regardless of the nature of their practice—even if they will engage in professional pursuits outside the law—there is a better than even chance that they will attend a mediation, if not dozens or even hundreds of mediations, during their careers. More than a few students will become parties to arbitration agreements or participate in arbitration proceedings.
So ADR is now well-established in legal academia, but it is not an academic endeavor. The practice skills orientation of ADR course offerings is reflected in the annual brevity that characterizes the SMU Annual Texas Survey, Alternative Dispute Resolution. The dearth of appellate cases is understandable. Granted, a contract is often the fruit of a negotiation, and things said in a negotiation might someday be alleged to amount to a business tort, but there will never be an appellate case regarding the practice skill of negotiation. Nor will there ever be many appellate cases or other developments pertaining to mediation; in the prior Survey there were none.
Although there are a couple of mediation-related cases to highlight this year, the editors of future issues of the SMU Annual Texas Survey may wish to consider narrowing this topic to “Arbitration.” Let us begin.
Will Pryor, Alternative Dispute Resolution, 3 SMU Ann. Tex. Surv. 3 (2017)