LAWRENCE — A University of Kansas professor has authored a new edition of a book designed to help law students and lawyers develop important practical skills and learn the law governing disputes resolved outside of court.
Stephen Ware, professor of law, has written “Principles of Alternative Dispute Resolution,” now in its third edition. The book is a concise guide to the three main processes of what lawyers call “Alternative Dispute Resolution,” or “ADR”: arbitration, negotiation and mediation.
“Lawyers call these three processes ‘alternative dispute resolution’ because they are our most common alternatives to courts deciding cases,” Ware said. “While cases resolved by courts — judges and juries — typically get the most media attention, a great many cases are resolved by arbitrators, or by the disputing parties’ agreement reached through negotiation or mediation.”
Arbitration is like litigation in court because both arbitration and litigation allow disputing parties and their lawyers to present evidence and arguments to neutral decision-makers. However, those decision-makers in arbitration are neither judges nor jurors, but arbitrators chosen by the parties and usually paid by the parties. So an arbitration is basically a private-sector court created by the disputing parties’ contract.
Negotiation is the most common process of dispute resolution and is widely used by lawyers to settle cases that would otherwise be resolved by litigation or arbitration.
“Negotiation skills are among the most important skills a lawyer can have,” Ware said.
Mediation is a closely related skill because a mediator is a neutral person who assists parties in reaching a negotiated settlement.
“The idea behind increasing use of ADR was that courts were too crowded, litigation was too expensive, and that hopefully through alternative methods we could get better, cheaper resolution of disputes, or both,” Ware said.
The book has been used as the primary text for Alternative Dispute Resolution courses in several law schools. The book is suited for that role because it clearly and concisely explains the theory, practice and legal doctrine relating to arbitration, negotiation and mediation. This enables law school instructors using the book to save time “learning the law” so more class time can be devoted to students working with the law to develop practical skills in an experiential manner. For example, many ADR courses involve students negotiating or mediating the settlement of a hypothetical case or drafting a hypothetical arbitration agreement.
Ware emphasizes this sort of skill-building when he teaches ADR and, more broadly, in his other teaching. He also chaired a KU Law committee that led the law school to curricular innovations expanding opportunities for law students to develop a range of practical skills through experiential learning.
“This book is part of that effort to keep legal education practical and serve students by preparing them for their careers, and to serve practicing lawyers as well,” he said.
The three major processes of alternative dispute resolution are very pervasive in law, which makes knowledge of them useful to practicing lawyers in nearly every field and specialization of law. For example, the book is a quick resource for practicing lawyers looking to reach a negotiated settlement, whether in business, family, personal injury or numerous other areas of law. As a research tool, the book can introduce lawyers to areas of alternative dispute resolution they may not be familiar with, such as confidentiality requirements in mediation, and point them to relevant statutes and court decisions in those areas to help set the foundation for their research.
“Good legal research often begins with ‘I need a concise overview of the big picture of a given area of law,’” Ware said. “Then it moves to ‘I need leads to find the law in my jurisdiction about my specific legal issue.’”
Ware’s book provides both the concise overview and the leads for further research.
The new edition expands largely on arbitration. As international business has grown in recent years, international arbitration has grown as well. In addition, arbitration of consumer and employment disputes has grown and become increasingly controversial. The Supreme Court and other courts across the country have issued a number of decisions in the area, and the book has updated its research to reflect the changes and new rulings.
Ware has written extensively on ADR for more than 20 years and said seeing the many connections between ADR and other areas he has expertise in — such as contract, consumer, commercial and bankruptcy law — make alternative dispute resolution an especially rewarding area of law in which to work.
“One of the great, fun things about my career is the ability to teach a wide variety of areas and write on a wide variety as well, to be able to view law as a whole rather than focusing more narrowly,” Ware said.