Texas Tech Law Review Article | Alternative Dispute Resolution: Litigating Arbitration Slows as Mediation Becomes More Popular


Our blog contributor Don Philbin has published his yearly survey of ADR case law in the Fifth Circuit. Here is part of the introduction:

Alternative Dispute Resolution as a whole is thriving. Civil jury trials continued at multi-decade lows, both absolutely and as a percentage of dispositions.1 And alternatives to those trials have become mainstream. But not all Alternative Dispute Resolution (ADR) is equal. As ADR users have become more sophisticated buyers, they are thin-slicing their available processes. Mediation is growing in popularity and rarely results in a court challenge. It is popular because it is not rule-bound and stable because of clear law protecting the process. Arbitration, on the other hand, has drawn more criticism with increased use and dominates this year’s case review.

Though nineteen arbitration cases were decided by the Fifth Circuit this term, that is less than half the number decided just two years ago. And most were quietly decided with unpublished and often per curiam opinions, which is consistent with broader circuit trends. While circuit activity in the area has calmed, the United States Supreme Court continues to accept and decide arbitration cases that have a pronounced impact on practice not only in the Fifth Circuit but in state-court cases governed by the Federal Arbitration Act (FAA). Three of seventy-three October 2009 Term Supreme Court opinions focused on arbitration, there is at least one more pending this October 2010 Term, and the Court has agreed to hear yet another during the October 2011 Term.

Most of the Fifth Circuit cases involved pre-arbitration challenges to the arbitral process, and less than half of those were successful. Those are good odds compared to the post-arbitration challenges seeking to vacate an award: not a single arbitration award was vacated during the term. This is attributable in large part to two decades of U.S. Supreme Court rulings that have moved pre-dispute arbitration agreements “from disfavored status to judicially-denominated „super-clauses.?” As a result, arbitrators may the rate of disposition by jury trial 43.7%. In 2009, 0.6% of civil filings were disposed of by jury trial, up from 0.5% in both 2007 and 2008.

You may download the article here.

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