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Briefs An ADR degree; reform act expires.

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An New LLM that
Focuses on ADR
An LLM program with an apparently
unique focus on alternative dispute
resolution wrapped u p its first semester last month at George Washington
University’s National Law Center in
Washington, D.C.
The master’s program, which offers
law school graduates an LLM in litigation and dispute resolution, prepares
attorneys for resolving disputes, according to promotional literature, “in
all the varied forums in which disputes
are settled.”
The curriculum, says program designer a n d director Stephen A.
Saltzburg, a GM! law professor, is “the
kind of training necessary for anybody
going to represent clients and what
choices they should properly consider
when it comes to resolving a dispute.”
The degree’s classes are split between litigation skills and ADR skills.
Only trial advocacy is mandatory. But
students must choose seven out of the
other eight offerings, and while jury
and evidence courses sit squarely in the
litigation area, the rest have a strong
ADR orientation. They include international dispute resolution, ethics in
adjudication and settlement, and pretrial civil practice. The program also
offers a mediation course. In addition,
a negotiation course takes a wide-ranging view of conflict management, including a brief focus on designing
dispute resolution systems.
“Our idea was that litigation of the
future,” says Saltzburg, will be “more
and more a choice of forums for parties to resolve their disputes.” He says
that he had no model to help him design the program. “We thought we
were doing something nobody had
done before,” notes Saltzburg.
“I haven’t heard of anything like it,”
says Altwnntives editorial hoard member Gerald A. Williams, a law professor at Brigham Young University in Salt
Lake City, Utah, who has written about
ADK education in law schools.
The first class, says Saltzburg, has
about 20 students, split evenly between
“Es, I huffed and I puffed and I blew your house down.
A n d , yes, I’m asking you to dejiind me in court.”
full and part timers. A few in the class,
he says, have entered the program directly after receiving their J.D.
After Sunset, A Look
At CJRA’s Legacy
The CivilJustice Reform Act of 1990
quietly expired last month, ending an
experiment that changed procedures
in the nation’s 94 federal district
While the CJRA has altered court
operations, the extent of its impact
varies depending upon the courtand the person doing the analysis.
While most observers say that the law,
at 28 U.S.C. 471-482, was a good thing,
most also say that it could have and
should have made a bigger impact in
the area of alternative dispute resolution.
The goal of the law was to reduce
the costs and delay of civil litigation,
using six case management principles, including ADR. The law had a
sunset provision that ended its effects
on Dec. 1.
The various innovations were not
instantly abandoned, however. The
U.S.Judicial Conference’s Committee
on Judicial Resources is considering
ways to maintain staff funding in order to continue some of the innovations. The committee is expected to
report to the conference at its next
session in March.
The act “has accomplished what it
was supposed to accomplish,” says
Thomas D. Lambros, an early supporter of the CJRA bill and a former
federal district court chief judge in
Ohio’s northern district. He adds that
the GJRA “has reduced the burdens on
the system by providing more opportunities to resolve their disputes short
of a full-blown trial.”
Lambros, now special counsel to
Cleveland’s Bricker & Eckler, adds that
“there are more ADR programs in the
court than before. More litigants and
(continued on following page)
Vol. 16, No. 1 January 1998
(continued from previous page)
attorneys have had exposure to ADR
than ever before.”
But those ADR measures also faced
criticism. The Rand Institute for Civil
Justice, a Santa Monica, Calif., think
tank, studied the CJRA’s pilot ADR
programs, and in a report last year
concluded that ADR use under the law
was low. See Hensler, “Rand’s Rebuttal: CJRA Study Results Reflect Court
ADRUsage-Not Perceptions,” 15 Alternatives 79 (June 1997).
month to open a Newport Beach, Calif., ADR office for Los Angeles’s Ire11
& Manella-says that the CJRA was
valuable because it helped institutionalize ADR use. But he says that while
“established programs” will continue
to receive funding, the act’s expiration
means that “it is less likely there will
be funding for ADR across the board.”
Thomas Lambros says the CJRA sunset means that it is time for new initiatives. “It‘s a necessity for Congress to
not close the book on their responsibility, and encourage the efficient administration of justice,” he says,
The biggest benefit of the
court reform legislation may
be the information it has
provided that can be used to
improve the system.
Some ADR proponents shot back.
T h e first thing that former Tulsa,
Okla., federal judge John L. Wagner
mentions when asked about the CJRA‘s
sunset is his disappointment with the
Rand results. He criticizes the data,
and says “I thought that the result was
not representative of what was really
going on in the courts and elsewhere.”
Besides ADR, the CJRA also called
for differential case management, local studies of civil and criminal dockets, automated information systems,
earlier involvement of court personnel
in case planning, and improvements
in discovery and communications.
Wagner says that the problem with
the Rand study and the CJRA itself is
the focus on costs and delay, which he
says is incomplete because it doesn’t
measure litigant, attorney and public
satisfaction with the process. Measuring the qualitative aspects of the programs, says Wagner, “is something that
is sorely needed.”
Nevertheless, Wagner-who
resigned from his federal court seat in
Oklahoma’s northern district last
Alterriatives 9
C:PR Institute for Dispute Resolution
adding, “It’s not solely the function of
the courts or lawyers but a partnership
function of the three branches ofgovernment, as well as the private sector.”
Some measures have begun. For
example, New York’s Eastern District
last month “extended indefinitely” its
“experimental project requiring mediation of some federal civil cases,”
which was scheduled to end with the
CJRA’s Dec. 1 expiration.
AlternativPs staff editor Elizabeth
Plapinger, who co-wrote the book
“ADR and Settlement in the Federal
District Courts,” says that while she
believes the CJRA had run its course
as an experiment, it was a worthwhile
effort. “It has reflected a remarkable
and largely consumer-driven tide of
interest in dispute resolution,” says
Plapinger, director of the Judicial
Project at CPR, which publishes Alternativn.
‘We also have lots of information now
on how to make these programs better,” she adds, concluding: “Ourjob is
to mine that information and improve
the quality of the experiments.”
FDIC Survey
Backs ADR Use
The Federal Deposit Insurance Corp.
last month completed a lengthy study
of its ADR use, and its conclusion is
that the program works well.
Martha McClellan, counsel in the
FDIC’s ADR unit, says that the 250 responses to the unit’s survey of FDIC
employees in its Washington, D.C.,
headquarters and eight regional offices, indicate that the ADR programs
the FDIC uses are “incredibly cost effective.” But McClellan points out that
the study’sscope and significance went
well beyond dollars.
The study, the “Alternative Dispute
Resolution Program Evaluation
Project Report,” was presented to the
FDIC’s board on Dec. 16. The FDIC,
established by Congress in 1933, insures deposits at the nation’s banks and
savings associations.
McClellan explains that in the past,
the FDIC measured the success of its
ADR program only by the amount of
money saved. This time, she says, the
ADR unit developed a system to evaluate the seven core functions the unit
provides, including, training, education, policy, and actual mediation services.
In addition to the cost savings,
McClellan says, “there was n o bad
news.” But she says that there was a surprise: “There are large segments” of the
FDIC where the ADR unit has not had
the opportunity to offer ADR training,
and it showed. Nearly half of the respondents weren’t familiar with ADR.
Nevertheless, she quickly adds,
among those who are familiar with
ADR, the study shows that “it becomes
a part of [their] repertoire.” The bottom line is that ‘$wehave a long way to
go,” McClellan says, “but at least we
have discovered that our training is
effective.” She concludes: “It is clear
that ...o u r corporate culture has
changed in terms of how we approach
problems and disputes.”
McClellan says that the report’s recommendations on education efforts
and the FDIC’s general ADR strategy
are expected to be implemented
within three years.
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