VOLUME V, ISSUE 3
STUDENT WORKS EDITION
INTERNATIONAL CONFLICT RESOLUTION & MANAGEMENT: THE WAYS IN WHICH
ISRAEL AND PALESTINE INTEGRATE DISPUTE RESOLUTION TECHNIQUES TO
PROMOTE PEACEFUL STABILITY IN MULTIPLE DISCIPLINES
Brittany N. Ferrigno
EXAMINING THE ENFORCEABILITY OF ARBITRATION CLAUSES IN CORE
BANKRUPTCY PROCEEDINGS
Joseph R. Shakibanasab
PROSECUTORIAL POWER IN PLEA BARGAINING: SUPPLEMENTING MEDIATION
WITH PLEA NEGOTIATION
Tara Bing
ALTERNATIVE DISPUTE RESOLUTION IN CRIMINAL CASES: IS IT CONSTITUTIONAL
AND EFFICIENT ?
Shannon Morris
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. i RESOLVED: Journal of Alternative Dispute Resolution
RESOLVED: JOURNAL OF ALTERNATIVE DISPUTE RESOLUTION is an EPublication founded in January 2010 by a group of Charleston School of Law
students and the Center for Dispute Resolution.
RESOLVED publishes two issues per year as well as a student works edition
each academic year.
Our vision is to promote research and writing in the areas of dispute resolution
theory, skills, techniques, and application.
The opinions and conclusions expressed in this publication are solely those of
the individual authors and do not necessarily reflect the opinions of RESOLVED
or The Charleston School of Law.
RESOLVED solicits submissions from its readers and the legal community at
large. If you would like to submit an article for potential publication, please
email the staff of RESOLVED at [email protected].
Readers who desire reprint permission or further information should contact the
Editor in Chief, RESOLVED, JOURNAL OF ALTERNATIVE DISPUTE RESOLUTION,
c/o The Charleston School of Law, 81 Mary Street, Charleston, South Carolina
29403.
Cite this law journal as RESOLVED J. ALTERNATIVE DISP. RESOL., Spring 2015,
(page number).
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. i RESOLVED: JOURNAL OF ALTERNATIVE DISPUTE RESOLUTION
Volume V, Issue III
2015
IVEY N. BLAIR
Editor-in-Chief
BRENT KAUFMAN
Associate Editor-in-Chief
AMY MCARDLE
Managing Editor
JENNIFER WHITE
Editor at Large
JORDAN SMITH
Senior Executive Editor
Executive Editors
ANDREW HEITMAN
SHANNON MORRIS
TORI SPEARMAN
Editors
TARA BING
BRUCE BINNEY
NATALIE DALRYMPLE
SAYDE DANIELS
BRITTANY FERRIGNO
JOSHUA MASTERSON
JOSEPH SHAKIBANASAB
TODD SILVIS
PETER WESSELS
MARTI DENNIS
Symposium Editor
International Conflict Resolution & Management: The Ways in Which Israel and Palestine
Integrate Dispute Resolution Techniques to Promote Peaceful Stability in Multiple
Disciplines
Brittany N. Ferrigno1
I.
INTRODUCTION
The scope of the Israeli-Palestinian Conflict is greater than those extremist terrorist
attacks Americans see on the national news.2 The essence of the conflict is deeply rooted in
psychological and religious aspects that have been engrained in both the Israeli and Palestinians’
upbringing.3 The origins of this conflict can be traced back to biblical times and continue until
the present day.4 Thus, it is imperative to examine the underlying reasons and justification for the
conflict from its roots onward.5
Should a generalized use of the terms “Israeli” and “Palestinian” be avoided or
reexamined? It is vital that the international community understand that there are three religious
sects of individuals living amongst one another, some peacefully and others not, within both
1
Candidate for Juris Doctor 2016, Charleston School of Law. Having an interest in the ongoing conflict involving
the state of Israel and the Palestinian territories, combined with my recent travel throughout Israel and my
involvement with Resolved, I felt compelled to research further into the history and future outlook on managing and
resolving the conflict between the Israeli and Palestinian people. Through exposure while traveling with a guide
throughout Israel, I learned that the conflict is more than what one would think of in terms of an ongoing war.
Special thanks to Professor Aleatra Williams for her editing and guidance during my Independent Study writing
process.
2
Bias and Distorted Media Coverage Of Israel/Palestine, If Americans Knew, available at,
http://www.ifamericansknew.org/media/bias.html.
3
Alon Ben-Meir, Root Causes Behind The Israeli-Palestinian Impasse, World Post, available at,
http://www.huffingtonpost.com/alon-benmeir/root-causes-behind-the-is_b_894867.html? (discussing traumatic past
events, such as the Holocaust; stating that the Palestinians fail to recognize the Holocaust and the Jews’ connection
to the land of Israel).
4
What is the reason for the Arab-Israeli conflict?, available at,
http://www.seekingtruth.co.uk/israel_arab_conflict.htm.
5
Dan Smith, The State of the Middle East 15 (2006).
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 3 Israeli and Palestinian people.6 Israel is the land from where three religions, being Judaism
(Jewish), Islam (Muslim), and Christianity, have essentially evolved.7 Because of these geneses,
the land of Israel is sought after and desired by so many people not only in the Middle East, but
around the world.8
Delving more deeply into the history of this ongoing conflict, this article does not strive
to prove rightness or wrongness, nor reject cultural beliefs of a particular sect of individuals.
Rather, the aim of this article is to present the underlying emotions, religious impact, and cultural
differences among both Israelis and Palestinian people in order to address the present day
conflict concerning the land of Israel.9 Section II introduces the desired land of Israel and the
Israeli and Palestinian people, in order to explore the basic foundation of each culture and what
each party desires. From this, Section III further examines the cultural and religious
characteristics of both the Israelis and Palestinians by looking into the ways in which ADR
methods have been used over the years within the Jewish and Islamic communities. Section III,
also presents the development of conflict resolution centers in both Israel and the Palestinian
territories. Section IV applies what is presented in Sections II & III, to suggest how positive
growth in both economic stability and Israeli-Palestinian interactions could result by further
integrating ADR into daily life. Consequently, by incorporating ADR practices taken from
Jewish and Islamic culture into every day situations within Israel and Palestine, there is the
potential of increasing non-violent interactions and future land agreements through establishing
trust and respect for one another.
6
Yitzhak Reiter and Marwan Abu Khalaf, Jerusalem’s Religious Significance, Palestine-Israel Journal, available at,
http://www.pij.org/details.php?id=169.
7
Religion: Three Religions, One God, Global Connections the Middle East,
http://www.pbs.org/wgbh/globalconnections/mideast/themes/religion/.
8
See Smith, supra note 5 at 15.
9
See Smith, supra note 5 at 56.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 4 The future of Israel is the answer given to the question concerning what is most important
to people in Israel and the West Bank.10 Where do both the Israelis and Palestinians go from
here? How do the Israeli people cope with threats being made to wipe Israel off the map?11 How
do the Palestinians establish a sense of autonomy living in a Jewish state? The word “Peace” or
“Pray for Peace” was commonly seen on banners, graffiti, and in flyers and brochures given to
the general public. In short, most “normal” everyday working individuals, regardless of religious
belief, would naturally desire peace and not prefer to live in fear while performing everyday
activities, such as working or even riding the bus. Arguably, this is true even though each may
have a different perspective concerning what should be done concerning the land of Israel.12
Although the fundamentals of the conflict are primarily due to religious contrasts evident in
Judaism, Islam, and Christianity, the greatest harms to the average citizen of all groups in the
area are caused by extremist in each religious sect through the terrorist and political attacks
within the communities.13
II. THE LAND AND RELIGION: CONFLICT BETWEEN ISRAELIS AND
PALESTINIANS
“How good and pleasant it is when God’s people live together in unity!”14 Beginning
with the people of Israel, termed the Israelis, a common misconception individuals not exposed
10
Rabbi David Hartman, The Significance of Israel for the Future of Judaism, available at, (http://hartman.org.il/Blogs_View.asp?Article_Id=247&Cat_Id=414&Cat_Type=Blogs)
Yasser Okbi and Maariv Hashavua, Iranian Military Chief Threatens To ‘Wipe Tel Aviv Off The Map’, The
Jerusalem Post, available at, http://www.jpost.com/Middle-East/Iranian-military-chief-threatens-to-wipe-Tel-Avivoff-the-map-392359; see also Iran To ‘Wipe Israel Off The Map?’ Read The 600 Words For Yourself To Confirm
US/Israel Criminal War Lies, Washington Blog, available at, http://www.washingtonsblog.com/2015/03/iran-wipeisrael-map-read-600-words-confirm-usisrael-criminal-war-lies.html. (The origin of claims that Iranian President
Ahmadinejad threatened to “wipe Israel off the map” in his October 30, 2005 speech).
12
Phyllis Bennis, Understanding the Palestinian-Israeli Conflict 9 (2007).
13
Herb Keinon, Netanyahu to European Jews: Terror attacks in Europe will continue, The Jerusalem Post,
available at, http://www.jpost.com/Israel-News/Netanyahu-to-European-Jews-Terror-attacks-in-Europe-willcontinue-Israel-is-your-home-391049.
14
Psalm 133:1
11
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 5 to the dynamics of Israel may have, is that all Israelis are Jewish individuals.15 The term
“Israelis” encompasses Arab (both Christian and Muslim), Jewish, and Christian individuals.16
Specificity is required because the Israelis are simply citizens of the state of Israel which can
even include Palestinian citizens of Israel.17 Within the state of Israel, there are two cultures of
people who are at the center of the ongoing conflict: the Israeli and Palestinian people, thus
termed the Israeli-Palestinian Conflict.18 There are three religions common among the Israeli and
Palestinian people: Christianity, Judaism, and Islam.19 Each of these religions has a different
relationship with the land of Israel. The Jewish people believe that they together are bound to the
land of Israel.20 Jews believe that the land of Israel is promised by God from God’s promise to
Abraham; “Unto thy seed will I give this land.”21 For the religion of Christianity, the land of
Israel is the birthplace of Jesus and encompasses the journey of Jesus’s ministry.22 Further, the
land of Israel is the site of Jesus’s passion and resurrection for Christians.23 Many Christians visit
Israel for the purpose of pilgrimage and prayer.24 Continuing the variety of significance of Israel,
15
Are All Israelites Jews?, United Church of God, available at, www.ucg.org/booklet/united-states-and-britainbible-prophecy/empire-exile/are-all-israelites-jews/.
16
See Bennis, supra note 12, at 16 (“Israel defines itself as a state of and for the Jewish people, and about 80 percent
of the population are Jews”).
17
See Bennis, supra note 12, at 18.
18
The Ongoing Struggle and the Middle East Peace Process, My Jewish Learning, available at,
http://www.myjewishlearning.com/israel/Contemporary_Life/Israeli-Palestinian_Relations.shtml.
19
Religions in the Holy Land, Stand for Israel, available at,
http://www.ifcj.org/site/PageNavigator/sfi_about_culture_religion.
20
Charting the Holy Land: Jerusalem as the Earth’s Center, Jewish Virtual Library, available at,
http://www.jewishvirtuallibrary.org/jsource/loc/Center.html.
21
Id.; see also Genesis 12:7; Nearly 18,000 Jews Moved to Israel in 2012, United with Israel, available at,
http://unitedwithisrael.org/nearly-18000-jews-moved-to-israel-in-2012/ (“Within the past year, almost 18,000 Jews
made aliyah to Israel. Out of this number, twenty percent were from Russia; seventeen percent were from the United
States; and fourteen percent were from Ethiopia. Some 2,030 Jews also made aliyah from the Ukraine, while 1,853
Jews made aliyah from France. Jews also made aliyah from smaller countries, such as Honduras, Madagascar, the
Dominican Republic, Monaco, and Andorra. The oldest immigrant out of the group was a 100-year-old man named
Moses Lederman.”).
22
See Charting the Holy Land: Jerusalem as the Earth’s Center, supra note 20.
23
Id.
24
Id.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 6 Muslims believe that Jerusalem is holy due to the Prophet Mohammed’s ascent to heaven from
the Dome of the Rock, a well-recognized sacred site in Jerusalem.25
“There are three recognized objectives for the state of Israel: (1) providing protections of
the Holy sites respective to all three religions; (2) protecting cultural background within
Jerusalem; and (3) providing religious freedom.”26 Jerusalem is a Holy City in which all three
religions of Christianity, Judaism, and Islam flourish in their religious traditions, as well as come
together to partake in religious ceremonies. Jerusalem is the center of the earth, where Europe,
Asia, and Africa meet.27 Dating back to the thirteenth-century, crusader maps have placed
Jerusalem as the center point of the earth.28 One notable crusader map displayed, “a three-leaf
clover, each leaf being a continent: Europe, Asia, and Africa. The three are drawn together by a
ring encircling a single city; that city is Jerusalem.”29 According to Pope John Paul II,
“Jerusalem represents the geographical point of tangency between God and man, between the
eternal and history.”30 Due to the historical and religious significance of the city of Jerusalem,
achieving peaceful coexistence among Christianity, Judaism, and Islam is challenging, especially
when all of these divergent religions converge in one common densely occupied space. The Holy
City is a city of division evidenced by the continual terrorist attacks and conflict. Being a conflict
stricken city, any hope for universal peace in Jerusalem must be, “a complete upheaval of history
25
Id.
Jerusalem a City and Its Future, 234 (Marshall J. Berger & Ora Ahimeir, 6th ed. 2007).
Id. at 223-24 (“scholars described it as the umbilicus mundi; theologians used its name to indicate the kingdom of
heaven (“celestial Jerusalem”); and even today, people of culture throughout the world united to speak of
“Jerusalem, l’unique et l’universel.”).
28
See Charting the Holy Land: Jerusalem as the Earth’s Center, supra note 20.
29
Id.
30
See Jerusalem a City and Its Future, supra note 26, at 224.
26
27
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 7 that can no longer find its roots in law or in political compromises, but must go much deeper,
touching the hearts of all humans.”31
The Palestinian name is derived from the conquering Roman Empire in their attempt to
obliterate the Jewish presence throughout Israel.32 The term Palestinian refers to Palestinian
Arabs. Palestinian Arabs are descendants of Palestine under the Arab/Islamic Empire.33
Palestinian Arabs may have different religious backgrounds. Some may be Christian, Muslim, or
Druze.34 Those of the Druze faith, are not as prominent in Israel.35 They speak Arabic and
essentially identity themselves as Arabs, with distinguishable religious and cultural practices
than other Arab.36 Druze individuals practice a religion based on interpretations of Judaism,
Christianity, and Islam, and believe Moses, Jesus, and Mohammed are each prophets.37 The
Druze community is a closed religious group, preventing converts entry into the Druze
community, rather requiring that one must be born a Druze.38 Many Druze in Israel live in the
Carmel, Galilee, and Golan regions; A great number of Druze who live in Carmel and Galilee are
Israeli citizens, while a number of Druze who live in Golan are Syrian citizens but hold
permanent Israeli resident status.39
31
Id. at 225; see also The City of Pieces Undivided and Eternal Unhappiness, The Economist, available at,
http://www.economist.com/news/middle-east-and-africa/21631199-conflict-over-jerusalems-holy-sites-may-sparkwider-conflagration-undivided-and.
32
Rockwell Lazareth, Who are the Palestinians? What and Where is Palestine?, News With Views, available at,
http://www.newswithviews.com/israel/israel14.htm.
33
See Bennis, supra note 12, at 11 (“Palestinian Arabs are descendants of the indigenous people of Palestine, who
lived under the vast Arab/Islamic empire that from the seventh century dominated Palestine, during the rise of the
Arabic language and Arab/Islamic culture”).
34
Are all Palestinians Muslim?, Institute for Middle East Understanding, imeu.org/article/are-all-palestiniansmuslim; see also The Druze in Israel, My Jewish Learning, available at,
www.myjewishlearning.com/israel/Contemporary_Life/Society_and_Religious_Issues/Arab-Israelis/druze.shtml.
35
The Druze in Israel: History & Overview, Jewish Virtual Library, available at,
www.jewishvirtuallibrary.org/jsource/Society_&_Culture/druze.html.
36
Rachael Gelfman Schultz, The Druze in Israel, My Jewish Learning, available at,
http://www.myjewishlearning.com/israel/Contemporary_Life/Society_and_Religious_Issues/ArabIsraelis/druze.shtml.
37
Id.
38
Id.
39
Id.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 8 The occupied Palestinian territories consist of the West Bank, which borders the Jordan
River, and Gaza “Gaza Strip” which is located on the Mediterranean Coast.40 These Palestinian
territories are regulated by the Palestinian Authority (PA).41 There are approximately 5.6 million
Palestinians occupying the state of Israel, the West Bank, and Gaza; 1.4 million being actual
citizens of the state of Israel;42 2.6 million living in the West Bank;43 1.6 million living in the
Gaza Strip.44 Historically, Palestinians who live in the state of Israel have notoriously struggled
with establishing their own identity and culture.45 Because Israel is generally accepted as a
Jewish state, which tacitly identifies Palestinians as non-Jewish individuals, Palestinians battle
for fair representation.46 While envisioning Palestinian territories, thoughts of discord, war, and
endless failed peace talks comes to mind.47 Distinct Palestinian territories consist of the West
Bank and Gaza.48 The West Bank essentially is a multi-layered territory composed of various
legal regimes concerning land law over time, which has created not only confusion, but has
added to the Israeli-Palestinian conflict in present day.49 The primary issues regard the
legitimacy of settled territories and the security barrier.50 Relieving the confusion and defining
the borders of Palestinian territories, including the West Bank and Gaza Strip, essentially are
40
Palestinian territories profile-Overview, BBC News, available at, http://www.bbc.com/news/world-middle-east14630174.
41
Id.
42
Primer on Palestine, Israel and the Arab-Israeli Conflict, Middle East Research and Information Project, available
at, http://www.merip.org/primer-palestine-israel-arab-israeli-conflict-new#The%20Land%20and%20the%20People.
43
Id.
44
Id.
45
Id.
46
Id.
47
Natalie Orpett, The Archaeology of Land Law: Excavating Law In The West Bank, 40 Int’l J. Legal Info. 344, 34546 (2012).
48
See Primer on Palestine, supra note 42.
49
Id. at 348-50 (“Five different legal regimes have administered these occupations in the West Bank in the postOttoman period: British military occupation, the British Mandate (1922-1948), the Jordanian government’s
occupation and claims of annexation (1948-1967), the Israeli military administration (1967-present), and the
Palestinian Authority’s administration of Area A lands.”).
50
Id. (prefacing the issues in the Israeli-Palestinian conflict, including settlements and security barriers).
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 9 factors that need to be clarified to some degree in order to promote Israeli-Palestinian peace for
the future.
Being aware of the differing political and religious perspectives in Israel benefits the
overall knowledge of the international community in better understanding the long duration of
the conflict. Politically speaking, the main concern is the adjudication of Jerusalem sovereignty,
with continual debate regarding boundaries and territorial control between the Israelis and the
Palestinians.51 On the other hand, in terms of religion, this perspective deals with the intimate
and personal desires of Jews, Christians, and Muslims.52 Since there are both political and
religious aspects to the conflict, the continual search for peace will have to involve both political
and religious perspectives, as the two parallel forces in establishing peace and reducing violence
amongst the two sects of individuals.
“Peace” to the Israelis, particularly as expressed to me by Jewish citizens, would
eliminate attacks on innocent citizens and the negative publicity displayed around the world. The
perpetual struggle for peace and the accompanying negotiations to created agreements are
permanent fixtures on nationally anchored news stations. Such constant media coverage not only
produces day-to-day stress for individuals, personally, but also affects the state of Israel’s
economic and tourism markets, as one can infer from the following. In February 2015, Israeli
exports decreased to $4897.70 USD millions from $4953.60 USD millions in January of 2015.53
In 2014, Israel’s tourism welcomed 3.3 million tourist, which brought in approximately $41
billion NIS (New Israeli Shekel), and employed more than 200,000 Israelis.54 Despite the 3.3
51
See Jerusalem a City and Its Future, supra note 26, at 226.
Id. at 226 (“From a religious point of view, sovereignty over the city is not the main issue. Rather, its place is
taken by the search for a way to harmonize the different significances Jerusalem has for Jews, Christians, and
Muslims with the common significance shared by Jews, Christians, and Muslims.”).
53
Israel Exports, Trading Economics, available at, http://www.tradingeconomics.com/israel/exports.
54
Ariel Cohen, Tourism takes a sharp decrease in 2014 after the Gaza War, The Jerusalem Post, available at,
http://www.jpost.com/Israel-News/Tourism-takes-a-sharp-decrease-in-2014-after-the-Gaza-war-386719.
52
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 10 million tourist, the Israeli economy dropped 7% overall.55 The decrease in tourism is believed to
be attributed to the Gaza War,56 violence in Jerusalem and Tel Aviv,57 as well as travel warnings
to the North.58 These negative effects likely generated a 26% fall for the tourism industry in the
second part of the year of 2014.59 60 Viewing the media coverage of this attack, only added to the
mixed emotions individuals had when I would tell them about my upcoming travels to Israel. For
this reason, I believe not only the war and violence lead to a decrease in tourism for Israel, but
excessive media coverage of these events is responsible as well.
OneVoice surveyed both the Palestinians and Israelis, delineating the top pressing issues
along Palestinian and Israeli lines. The top five concerns for Israelis, were: (1) security for Israel;
(2) agreement on the future of Jerusalem; (3) rights to natural resources; (4) agreement on
managing Holy Sites; (5) agreeing on borders for Israel and Palestine.61 Conversely, the top five
issues the Palestinians identified as urgent include: (1) establishing an independent sovereign
state of Palestine; (2) the rights of refugees; (3) agreement on the future of Jerusalem; (4)
agreement on managing Holy sites; and (5) security for Palestine.62 Palestinians want or desire
equality, dignity, and independence.63 The root of these desires may be traced back to what their
elders encountered in 1947, when many were expelled from their homes, and then again in 1967
55
Id.
Id.
57
Id.
58
Id.
59
Niv Elis, Israeli hoteliers see continued tourist decline in first half of 2015, The Jerusalem Post, available at,
http://www.jpost.com/Business/Business-News/Israeli-hoteliers-see-continued-tourist-decline-in-first-half-of-2015390390.
60
Coming from my own experience relating to tourism, before traveling to Israel, I questioned if I was going to feel
unsafe and want to return to the United States. This uneasy feeling primarily was due to the excessive media
coverage that we, as Americans, view on the national news whenever there is an attack on innocent civilians in
Israel. Approximately a month before traveling, an attack in an Israeli synagogue occurred in Jerusalem, where I
would soon be traveling; but see Gillian Mohney, Fifth Person Dies in Israeli Synagogue Attack, ABC News,
available at, http://abcnews.go.com/International/person-dies-israeli-synagogue-attack/story?id=26986938.
61
Oraneet Orevi, A Holistic Approach To The Conflict Of Israel And Palestine: Where We Are Now And Where We
Can Go, 19 Ann. Surv. Int’l & Comp. L. 105, 142-43 (2013).
62
Id. at 142.
63
See Bennis, supra note 12, at 21.
56
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 11 when many Palestinians became refugees.64 “Palestinian leaders have consistently demanded the
right of return of the refugees and their descendants to their former homes inside Israel’s pre1967 borders as a prerequisite for a final peace agreement.”65 The U.S. news displays the
struggles the Palestinian people endure from Israeli military checkpoints, to young lives being
taken in crossfire attacks.66
The poll identified one common consensus regarding the most urgent issues for the
Israelis and Palestinians: the future of Jerusalem and managing the Holy Sites respective to each
religion. There is a degree of overlap and similarity displayed by the often opposing Israeli and
Palestinian people. Having a common overlap in urgent issues in the eyes of both the Israelis and
Palestinians, one would believe would help in seeing eye to eye and finding a resolution to a
matter. Rather, the desire shared by both the Israelis and Palestinians as to Jerusalem and the
holy sites is where conflict occurs. Each religion wants access and preservation of Holy Sites that
are near and dear to their hearts and religious practices. Jerusalem is basically an area of land that
is composed of many layers of history and sacred grounds. These layers cause great difficulty
because many Holy Sites are right next to, if not on top of another Holy Site of religious
importance to another practicing religion. For example, the Temple Mount is a significant and
sensitive holy site, specifically between the Jewish and Muslim people. In both Jewish and
Islamic tradition, the Temple Mount is recognized as the site where Abraham offered up his son
in sacrifice.67 In addition, the Muslim culture identifies the Temple Mount as the “furthermost
sanctuary”; Muslims believe this is the site in which the Prophet Mohammed made his ascent to
64
See Bennis, supra note 12 at 20, 21.
Russell Korobkin and Jonathan Zasloff, Roadblocks To The Road Map: A Negotiation Theory Perspective On The
Israeli-Palestinian Conflict After Yasser Arafat, 30 Yale J. Int’l L. 1, 12 (2005).
66
Id. at 11.
67
Genesis 22:1-18; see also Koran Sura Al-Saffat 37:102-110; Sites & Places in Jerusalem: The Temple Mount,
Jewish Virtual Library, available at,
http://www.jewishvirtuallibrary.org/jsource/Society_&_Culture/geo/Mount.html.
65
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 12 heaven.68 Christians recognize the Temple Mount as significant because of its connection with
Jesus; specifically, this is where Jesus, “issued his challenge against the temple authorities,” thus
resulting in his arrest and crucifixion.69 Jesus also attended festivals and prophesied the
destruction of the temple, that was later carried out by Titus of Rome.70 Thereby, all three
religions having an interest in the same sacred space, does nothing more than create contrasting
emotions and desires as individuals living and worshipping so close to one another cannot see
eye to eye, which results in tension as each religion differs in religious belief as to why such a
Holy Site should be preserved. Moreover, opinions may differ over which group has the
authority to protect and control the specific Holy Sites at issue, such as the Temple Mount.
III. ARBITRATION,
VIEWPOINTS
MEDIATION,
and
NEGOTIATION:
ADR
FROM
TWO
A. Alternative Dispute Resolution in Israel
Exploring how methods of dispute resolution including, arbitration, mediation, and
negotiation, are being used in helping establish peace culturally within the on-going IsraeliPalestinian conflict, is the intent of the following section. By doing so, examining the use of
Alternative Dispute Resolution methods within Jewish and Islamic cultural and religious
traditions is required. There have been several developments within the state of Israel focused on
providing arbitration, mediation, and negotiation services to companies and individuals
surrounded by conflict. Several centers for conflict resolution that are located where the people
and conflict co-exist, include: Jerusalem Mediation and Arbitration Center, International Peace
68
69
70
Id.
The Temple Mount, Go Jerusalem, available at, http://www.gojerusalem.com/article/186/The-Temple-Mount/.
Id.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 13 and Cooperation Center, and Palestinian Conflict Resolution Center.71 These centers are located
in the heart of where the conflict is occurring or has occurred at some point in time involving the
people occupying the land at issue. Such developments include the: Palestinian Conflict
Resolution and Transformation Center;72 Jerusalem Arbitration Center;73 and the Israel Center
for Negotiation and Mediation.74 The technique of arbitration serves to provide conflicting
parties a confidential, neutral, and un-biased ground with the goal of resolving a dispute as the
end result.75 The Jerusalem Arbitration Center (JAC) , is designed to provide an arbitral process
to Israelis and Palestinians outside of the individualized court systems.76 Such development is
seen as, “a breakthrough for Israelis and Palestinians,”77 as the two worked successfully together
to form a dispute resolution center in order to specifically increase economic trade between two
parties known for their conflicting relations.78 To further the idea of equality, the Jerusalem
Arbitration Center is founded upon the International Chamber of Commerce of Israel (ICC
Israel) and the International Chamber of Commerce of Palestine (ICC Palestine) working
together in joint venture to support the purpose of the JAC.79 The successful operation of the
71
Mediation and Arbitration Center, The Int’l Peace & Cooperation Ctr., available at, http://home.ipccjerusalem.org/en/ipcc/6/488/?tn=Dialogue_and_Peacebuilding; see also Wi’am Palestinian Conflict Resolution &
Transformation Ctr., available at, http://www.alaslah.org
72
See Wi’am Palestinian Conflict Resolution & Transformation Ctr., available at, http://www.alaslah.org
73
Nadia Darwazeh, The Jerusalem Arbitration Center, The Jerusalem Post, available at,
http://www.jpost.com/Opinion/Op-Ed-Contributors/The-Jerusalem-Arbitration-Center-335318.
74
Negotiation, The Israel Center for Negotiation & Mediation, available at,
http://yonashamirenglish.weebly.com/negotiation--mediation.html.
75
Catherine A. Rogers, The Jerusalem Arbitration Center, 106 Am. Soc’y Int’l L. Proc. 270, 270 (2012).
76
Id. at 270.
77
See Darwazeh, supra note 73.
78
See Darwazeh, supra note 73 (“Despite their long-standing political conflict, Israeli and Palestinian businesses
engage in a significant amount of economic trade. The estimated annual total of $5 billion in trade may surprise a lot
of people…The Israelis and Palestinians both felt this void and decided to work together, rather than separately, to
create a solution.”).
79
Jerusalem Arbitration Center, Palestine International Business Forum, available at,
http://www.pibf.net/stories/jac/ (the Jerusalem Arbitration Center opened on November 18, 2013).
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 14 JAC since 2013 has displayed a step forward in establishing trust between the Israelis and
Palestinians, despite historical and cultural differences.80
Modern day Israel did not begin exploring mediation until after the 1990s.81 Mediation
became incorporated into Israeli law pursuant to Amendment 15 to the Israeli Courts Law in
1992, and has been on the rise ever since.82 Though the Israeli court system is specialized into
three systems, the Israeli government seeks to encourage individuals to take advantage of such
ADR techniques, particularly those individuals dealing in the course of business.83 84 The Israeli
Bar Association has furthered this trend in mediation by incorporating both a dispute resolution
section and mediation institute to better the general public and court system.85 It was said of the
use of ADR methods in Israel:
“The institutional and societal trend toward acceptance of mediation is
due, in part, to the fact that it serves the personal interests of the parties
and the public interest as well. There are three reasons for the growing
acceptance of mediation:1. The parties structure and participate in the
mediation process themselves, which means that it is indeed they who craft
the solution that best suits them, with the help of the mediator. A solution
that is based on the needs and interests of the parties and that takes into
account factors other than financial matters, for example, dignity and
respect. There is a greater likelihood of reaching an agreement between
the parties if the decision is not forced upon them by a court. 2. Under
mediation, an arrangement reached by true cooperation and agreement is
80
Id.
Giuseppe De Palo and Mary B. Trevor, Worldly Perspectives: Israel, 28 Alternatives to High Cost Litig. 80, 81
(2010).
82
Joseph Benkel, Fundamentals Of Alternative Dispute Resolution In Israel, 2009 WL 2966294, 4 (2009).
83
Id. at 1 (“The Israeli government has been investing a great deal of effort to encourage the public and the business
sector to use mediation as a main alternative to dispute resolution. The National Center for Mediation and Resolving
Disputes by Agreement within the Ministry of Justice has, in recent years, been working in cooperation with central
agencies in the Israeli business sector to integrate mediation education and best practices into various business
organizations. The National Center has also been actively working to incorporate the mediation process as a
management tool and as a mechanism to resolve disputes between organizations, as well as between organizations
and their customers.”)
84
See De Palo and Trevor, supra note 81, at 80 (“The court system includes three main components: 1) The Civil
Court System, which handles the major portion of litigation, as well as all criminal and administrative matters; 2)
The Religious Court System, comprising separate courts for Jews, Christians and Moslems that are responsible for
matters pertaining to marriage, divorce and personal status; and 3) The Labor Court System, which primarily is
responsible for employee-employer suits and for large-scale disputes between organized labor and management.”).
85
Id. at 81.
81
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 15 usually more acceptable to parties. 3. Mediation reflects a world view that
emphasizes patience and communication. This may help to encourage
society to become more patient, respectful, and willing to resolve disputes
by communication and understanding in the long run.”86
ADR is comprised of both arbitration and mediation and has been used since the earliest
of times. ADR has been observed in use since 1800 B.C.87 Scholars have documented that ADR
has been used in the Mari Kingdom in what is now modern-day Syria.88 ADR has additionally
been documented within Israel during Biblical times.89
Overall, I encourage ADR as a practicable way to manage conflict with new advances
that have the potential of addressing and resolving global conflict and terror. Mediation in Israel
can be understood in three time periods: the formative period (1992-1998); the “mediation
revolution” period (1998-2004); and the period of decline (2004 to the present).90 The formative
period was introduced when mediation was incorporated into all areas of civil litigation, as a
suggested method of case resolution.91 To promote the use of mediation, incentives including
confidentiality of communication, as well as full or partial reimbursement of court fees if the use
of mediation was successful were put into effect.92 During this period, education and training
were available in order to further promote the use of mediation.93 The next period (1998-2004) is
86
See Benkel, supra note 82, at 2.
Amber Murphy Parris, Alternative Dispute Resolution: The Final Frontier Of The Legal Profession?, 37 J. Legal
Prof. 295, 297 (2013).
88
Id. at 297 (discussing the early history of ADR and its use by the Mari Kingdom).
89
Id. at 297 (“ADR’s use has been documented from Biblical Israel to the ancient Greeks; from the Holy Roman
Empire to the colonies of the newly created United States”).
90
Mordehai (Moti) Mironi, Mediation V. Case Settlement: The Unsettling Relations Between Courts And
Mediation—A Case Study, 19 Harv. Negot. L. Rev. 173, 192 (2014).
91
Id. at 192-94 (“It is somewhat telling that, notwithstanding the intention, the new provisions in the Court Law and
the regulations used the term “pishur,” a Hebrew word meaning “to bring about a compromise or compromising”
which typically characterizes case settlement…yet it took nine years to change the legal term in the law and
regulations to the more appropriate Hebrew word “gishur,” which means “bridging.”).
92
Id. at 192-93.
93
Id. at 193-94 (explaining that though efforts were taken to increase the use of mediation, only a few cases reached
the stage of mediation).
87
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 16 known as the “mediation revolution.”94 In order to enhance the attraction of mediation, Chief
Justice Barak made the use of mediation a priority to establish a new outlook on resolving
disputes without the use of case settlement.95 A purpose of the “mediation revolution” was to
provide judges with the ability to facilitate change within the the Israeli culture and lead to
conflict resolution.96 The decline of mediation was the final period (2004-present). Mediation,
though greatly accepted, was pushed to the side with the more modern and efficient use of case
settlement techniques.97
Since the 1990s, various mediation techniques and intermediary activities have played a
role in the attempt at bettering the Israeli-Palestinian conflict over the years.98 Conflict is a
muddy situation which requires a variety of approaches and positive actions that can progress
toward de-escalating the conflict. When approaching a conflict through mediation, the
methodical features that compose a conflict should be noted. Those features include: (1) the
conflict’s course of development; (2) the intertwined factors of the conflict; (3) persuasion,
sanctions, and coercion (external and internal).99 Particularly focusing on the conflict between
the Israelis and Palestinians, such conflict can be heavily influenced by “identity-based
conflict.”100 The “identify based conflict” is a conflict in which two peoples identify themselves
differently, but both seek to obtain the same matter, that is the same land in this particular
94
Id. at 192.
Id. at 195 (“Speaking at the inauguration ceremony of the Association of Israeli Mediators, he sent a clear, fourpronged message to the judiciary. First, mediation was needed even in the absence of case backlog. Second,
mediation was not simply a means for clearing the docket; it represented a better way of life. Third, for too many
years dispute resolution activity had been based on power discourse, and the courts too represented a form of power
(albeit one that is rights- or norms-based). Lastly, if Israelis wanted to live in a better and more cohesive society,
they needed to invest efforts in developing a consensual, non-power-based, and non-rights-based culture of dispute
resolution.).
96
Id. at 174-75.
97
Id. at 199.
98
Louis Kriesberg, Mediation and the Transformation of the Israeli-Palestinian Conflict, 38 Journal of Peace
Research 373, 373-74 (2001).
99
Id. at 375.
100
Id. at 376.
95
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 17 circumstance.101 Within the various mediation methods, there are also varying roles and services.
Roles varying in degree of power and services include establishing an agenda, finding neutral
ground to meet for both parties, and presenting options leading to resolution.102 “Traditional”
mediation can be contrasted with “problem-solving” mediation. Traditional mediation typically
includes a powerful governmental body which holds a significant stake in the outcome.103 This
particular type of mediation has made a positive contribution to the Israeli-Palestinian conflict.
Specifically, “big-power mediators have made important, sometimes essential, contributions in
bringing adversaries to the negotiation table…”104 “Problem-solving” mediation involves
bringing an equal number of members of the opposing parties together in order to guide
discussions revolving around the ongoing conflict. This technique of mediation is held over a
series of days and generally does not attempt to negotiate agreements, though it can be useful at
the early stages of negotiation talks.105 Providing a sense of balance between the opposing
parties, seeks to create dialogue, “to address the power asymmetry in Israeli-Palestinian
relations.”106 In my opinion, this technique of mediation seems to be the most realistic in terms
of incorporating the good for the general welfare, as beginner conversations are generated from
both parties in order to create a clear understanding of what each party desires. In addition to the
traditional and problem-solving mediation, a combination of the two techniques is used to
establish fairness laterally across the board between various levels of powers.107
101
Id. at 376-7.
Id. at 378.
Id. at 378.
104
Id. at 384.
105
Id. at 387.
106
Id. at 380-81.
107
Id. at 381-8.
102
103
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 18 B. Alternative Dispute Resolution in Jewish cultural and religious traditions:
“Shalom is the primary ‘goal and objective of the Jewish legal system and as such, it
governs the interpretation of the entire corpus of Jewish law’.”108 Elements of mediation and
conflict prevention are significantly incorporated in Jewish tradition.109 In Jewish tradition, the
idea of peacemaking grew from Aaron, who was Moses’s older brother.110 Aaron represented
what an ideal peacemaker would represent, that being one that is, “loving and pursuing
peace.”111 Today, the rabbi is the highest priest and peacemaker within the Jewish community.112
A rabbi, also known as hacham, seeks to promote peace between individuals within his
community.113 Rabbis take responsibility in enforcing the legal code, known as the Halacha; in
doing so, rabbis are thought as having a duty so to speak, to prevent conflict within their
community and are viewed as mediators who act, “for the sake of God” to establish trust
between disputing parties.114
Peace is an element within the Jewish culture that is spoken of in daily prayers.115 The
Talmud is the term relating to the comments that expand the Mishnah, which is the original work
of rabbinic law.116 The idea of mediation being more advantageous over a legal proceeding
ruling for one party, is displayed within the Talmud.117 Along with the peace-seeking mindset, is
the idea of compromise displayed dating back to Biblical times through Aharon during the
108
Omid Safa, In Search of Harmony: The Alternative Dispute Resolution Traditions of Talmudic, Islamic, and
Chinese Law, Williams & Mary Law School, available at,
https://law.wm.edu/academics/intellectuallife/researchcenters/postconflictjustice/studentinternationalpapers/index.ph
p. Shalom meaning ‘peace’ in this context.
109
See Steinberg at 4, available at, www.jcpa.org.
110
Daniel Roth, The Peacemaker in Jewish-Rabbinic and Arab-Islamic Traditions, Vol.4 Issue 2, Spring 2011,
http://www.religionconflictpeace.org/volume-4-issue-2-spring-2011/peacemaker-jewish-rabbinic-and-arab-islamictraditions.
111
Id.
112
Id.
113
Id.
114
See Steinberg at 21, available at, www.jcpa.org.
115
See Steinberg at 2, available at, www.jcpa.org.
116
Talmud 101, My Jewish Learning, www.myjewishlearning.com/texts/Rabbinics/Talmud/talmud_101.shtml.
117
See Steinberg, available at, www.jcpa.org.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 19 Golden Calf event.118 Compromise is used in a way to prevent conflict from developing further,
with the goal of achieving, or rather preserving peace between disputing parties.119
“In the Talmudic legal system,…the authority for ADR is implicit in the overreaching
goals of the Jewish faith, as described in the Torah.”120 Jewish Talmudic law further encourages
the concept of compromise between parties through the use of p’sharah or bitzua; p’sharah and
bitzua essentially are seen as mediation and arbitration mechanisms.121 The p’sharah technique
uses the rabbi figure essentially as a mediator, in order to reach a settlement between the
disputing parties, by incorporating Talmudic law, interest shared by the parties, and community
concerns;122 to conclude and display that a settlement has been reached, an exchange of a kinyah
sudor (symbolic handkerchief) obligates the parties to the voluntary agreed upon settlement.123
P’sharah is parallel to what one would consider non-binding mediation, suggesting that parties
potentially would be more willing to participate in such a form of mediation, knowing that if
terms are not sufficiently reached, each party can leave the table to pursue more formal matters,
such as bitzua, in order to resolve their disputes.124 The concept of bitzua, unlike p’sharah,
permits a rabbi to influence and decide the outcome in order to resolve a dispute; the rabbi is
given the authority to evaluate and weigh the merit of the claims brought by each disputing
party.125 Thus, unlike p’sharah which is parallel to non-binding mediation, bitzua resembles that
of traditional binding arbitration.126 Neither p’sharah nor bitzua reach the formal level of a beth
din hearing, which requires three rabbis to be present and involves strict and formal procedural
118
See Steinberg at 4, available at, www.jcpa.org.
Id.
120
See Safa, supra note 108 at 39.
121
See Safa, supra note 108 at 17-19.
122
Id.
123
See Safa, supra note 108 at 17.
124
Id.
125
Id.
126
See Safa, supra note 108 at 18.
119
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 20 and evidentiary rules, though it lacks state-based authority. 127 Before reaching a beth din,
disputing parties are encouraged to exhaust p’sharah and bitzua in hopes of reaching a
resolution.128 Utilizing these available dispute resolution mechanisms before proceeding forward
with formal hearings, can be seen as the underlying purpose of presenting p’sharah and bitzua as
options for Jewish individuals within their communities.129
C. Alternative Dispute Resolution Development in Palestinian Territories:
In Palestinian territories, from the West Bank to Bethlehem, there are ADR centers,
including the Wi’am Palestinian Conflict Resolution and Transformation Center. “Wi’am” in
Arabic translates to “cordial relationship,” which is the mission of this center since its opening in
March of 1995.130 Focusing on Arab tradition, the center seeks to incorporate Sulha and other
western means of conflict resolution, to resolve disputes within the Palestinian community.131
Instituting the Center within the West Bank, has supplemented the reality that 70% of the West
Bank is controlled by the Israeli military occupation, as the Palestinian National Authority has
been slow to retain and transition power over this area, thus a stable means of resolving disputes
within the community is severely lacking.132 That being said, the Wi’am Palestinian Conflict
Resolution and Transformation Center seeks to, “improve the quality of relationships and
promote peace and reconciliation in the community…to build a society based on democratic
norms and values.”133
127
Id.
Id.
129
Id.
130
Overview, Wi’am Palestinian Conflict Resolution and Transformation Center, available at,
http://www.alaslah.org/about-wiam/overview/.
131
Id.
132
Id.
133
Our Mission, Wi’am Palestinian Conflict Resolution and Transformation Center, available at,
http://www.alaslah.org/about-wiam/our-mission/.
128
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 21 D. Alternative Dispute Resolution in Islamic Cultural and Religious Traditions:
Islamic law seeks to instill moral responsibility and justice by fundamental principles
displayed in the Qur’an.134 Principles are separated into two categories: ibadat and mu’amalat.135
Ibadat governs prayer, fasting, and pilgrimage, all relating to responsibilities owed to God per
the individual; mu’amalat governs human interaction, such as marriages and divorce.136 The PreIslamic system of Tahkim was a form of arbitration in which disputing parties allowed an
individual to act as a hakam, that being an individual who was given the authority to decide the
disputed matter in a similar manner of a judge acting in a settlement dispute.137 The system of
Tahkim developed into the formal Qadi system.138 The Qadi system acts as a method of conflict
resolution that involves official religious judges that act in applying Islamic law within the
Muslim community.139
Sulha (sulh) is a centuries-old Arabic custom concerning dispute resolution among
families, tribes, and clans.140 This dispute resolution method is used in an informal and ritualistic
manner incorporating the elements of acknowledgment, apology, compensation, forgiveness, and
reconciliation.141 In addition, Sulha also displays a sense of cultural elements of honor and
shame. “In Israel, the Sulha is practiced virtually in every part of the country inhabited by Arabs
(Muslims, Christians, and Druze). The process coexists next to the country’s formal legal
134
See Safa, supra note 108 at 2-3.
See Safa, supra note 108.
136
Id.
137
F. Peter Phillips, Alternative Dispute Resolution Practice Guide, 1 Alternative Dispute Resolution Practice Guide
§ 33:3 (2014).
138
Id.
139
Id.
140
Id.
141
Marshall J. Breger and Shelby R. Quast, International Commercial Arbitration: A Case Study Of The Areas
Under Control Of The Palestinian Authority, 32 Case W. Res. J. Int’l L. 185, 215 (2000).
135
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 22 system.” 142 The basis structured “philosophy is based on sulu (settlement), musalaha
(reconciliation), musafaha (partaking of salt and bread i.e., hand-shaking), and mumalaha
(breaking bread together)”.143 Islamic Sharia law states that “the purpose of sulh is to end
conflict and hostility among believers so that they may conduct their relationships in peace and
amity.”144 Additionally, Islamic law promotes the use of Sulh that, “embodies the western
‘concepts of compromise, settlement, reconciliation, and agreement’”.145 The Sulh is ultimately
encouraged in order to avoid formal litigation.146 Sulh involves mediation and conciliation by a
Kadi or an established community member, who guides the parties to reach a settlement, as such
a facilitator can only suggest and cannot force an agreement between the two parties.147 Sulh
does not focus on shared interests between the disputing parties, but rather, focuses on relational
issues in hopes to repair harmony between the damaged relationships.148 The purpose of Sulh is
to “end conflict and hostility among believers so that they may conduct their relationships in
peace and amity.”149 The Qur’an promotes ADR mechanisms such as Sulh and states: “The
believers are but a single brotherhood. So make peace and reconciliation between your two
contending brothers…”150 This use of Sulh between Islamic believers and brothers, signals an
initial conflict that Islamic members do not extend this dispute resolution method outside of their
religious and cultural surroundings. If it is preached that Sulh is used between a single Islamic
142
What is Sulha?, Sulha Research Center Traditional Dispute Resolution in the Middle East, available at,
http://www.sulha.org/category/whatisulha/ (“The process predates Islam by about 400 years, and is practiced today,
with variations, across the Middle east, in Lebanon, Syria, Jordan, Occupied Territories, the Arabian Peninsula, and
in many other Muslim countries.”).
143
See Breger and Quast, supra note 141, at 214-15.
144
Id. at 215.
145
See Safa, supra note 108 at 5-6.
146
See Safa, supra note 108.
147
Id.
148
Id.
149
Id.
150
Id.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 23 brotherhood, Islamic followers would be hesitant, if not totally opposed, to act in a Sulh mindset
with that of the Jewish Israelis in order to establish peace and amity.
Although Sulha (sulh) is a traditional dispute resolution practice in Arab communities, it
is noteworthy that most formal and international matters are taken to higher courts and authority
to be resolved.
IV. USING ADR IN A MANNER TO POSITIVELY INFLUENCE DISPUTE
RESOLUTION FOR THE ISRAELI-PALESTINIAN CONFLICT PEACE PROCESS
A. Improving Economic Stability Through Commercial Arbitration
Though the conflict that exists between Israel and Palestine is substantially one of
differing religion and cultural beliefs concerning land, economic infrastructure is a main concern
in hoping to improve peaceful interaction between the two areas in a positive business manner.151
With this, “the Jerusalem Arbitration Center is a joint effort to develop an opportunity for Israeli
and Palestinian businesses to seek an ‘apolitical, effective, impartial, professional, enforceable
and cost effective alternative for the resolution of Palestinian-Israeli business related
disputes’.” 152 The JAC hearings between the two parties are held in East Jerusalem. 153
Admittedly, this may be a difficult place to provide a neutral hearing forum due to its
surroundings, because Jerusalem is a city full of history and holy cultural sites for both Israelis
and Palestinians, and is the city directly within the conflict. But the formal arbitration itself is
removed from each territory to France; thus, neither Israeli or Palestinian law will govern, rather
French law of arbitration will control to provide a complete unbiased forum.154 The issue that
Israeli and Palestinian businesses have expressed is that if commercial related issues result, it
151
Evan Goldsmith, Could Commercial Arbitration Help Settle A Historical Conflict Between The Israelites And
Palestinians?, 6 Y.B. On Arb. & Mediation 404, 416 (2014).
152
Id. at 405.
153
Id. at 410.
154
Id. at 410.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 24 will be hard to enforce laws in ‘foreign courts’; such that, if one is brought to resolve an issue in
the other’s court, there will be a biased outcome.155 Specifically, there may be an issue of
enforcing court rulings in an analogous fashion in Israel and Palestine. Thus, the formation of the
JAC was crafted in hopes of providing a neutral forum to prevent biased or unfavorable
outcomes, in hopes to promote economic business and a sense of trust and respect between the
Israelis and Palestinians.
After centuries of mistrust, engendering trust between Palestinians and Israelis. Trust
may be difficult to establish when there has been non-stop conflict, as well as psychological and
emotional distrust which might be so engrained into the mind of both Israelis and Palestinians.156
The reality though, is that there may always be conflict, but business cannot cease or refuse to
work with each other, or else each territory will essentially fail with economic downfall. Each
side to the conflict must overcome these barriers in hopes to provide a sense of economic
stability. An additional note regarding establishing trust, is that the JAC is supported by ICC
Israel, ICC Palestine, and ICC Paris; the ICC Israel and ICC Palestine seek to foster a positive
business relationship between the two, by developing dispute resolution practice.
157
Consequently, external pressure from all three JAC partner may enhance the willingness or
openness to on either side’s behalf in overcoming past conflicts which would help facilitate
better economic relationships with better cooperation between Israel and Palestine.158
Palestine and Israel are each other’s main trade partner.159 A few analysts believe that
Palestine is the second largest trade partner with Israel, United States taking the first spot.160 The
155
Id. at 405.
See Alon Ben-Meir, supra note 3.
157
Id. at 404-5.
158
Id. at 414.
159
Id. at 411.
160
Id. at 411.
156
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 25 West Bank Palestinian territory has shown economic growth in the years from 2008-2010, at a
rate of 9%, thus supporting political stability.161 The purpose of the JAC will be defeated if the
two sides working together cannot establish a basic level of trust. Obviously, ignoring the past
history of conflict will take time to heal from and will most likely always be a mindset of each
sides’ elders.162 Despite this, I suggest that each side through their future generations, must be
willing to gain a less distrustful working business relationship to overcome the past for the future
of their people. Additionally, I believe that JAC’s success will also be benefitted by broadening
economic opportunity and relationships, not only between the Israel and Palestine, but with other
neighboring countries.
Building trust between Israel and Palestine will not come overnight, but it may hopefully
flourish as time progresses and as more business transactions are exchanged. Fundamentally,
involving individuals at all steps on the economic ladder and removing distrust between Israel
and Palestine is what is called for to further peace in a conflict stricken region. If there can be a
sense of stability in the business market of Israel and Palestine, other neighboring countries may
be more willing to take part in investing in Israeli and Palestinian businesses or trade. This could
further the stability of peace and relationships between each other, but will only be able to reach
this point through the use of dispute resolution techniques. Providing the disputing parties a
neutral forum to bring matters to the table, will ultimately provide a safe harbor zone in which
both parties will feel comfortable expressing their requirements. Creating a safe environment
will allow the parties to more safely express what is necessary to overcome some of the hurdles
to peace and will, undoubtedly, aid in fashioning a more trusting relationship and free
expressions. Though trust, or less distrust, is only one element in the grand scheme of this
161
162
See Orpett, supra note 47, at 345.
Id. at 392.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 26 conflict resolution, it is nonetheless a vital component in constructing the relationship necessary
for the most effective uses of the various dispute resolution methods and creation of ADR-life
centers, which will provide an open forum for parties to work together in resolving matters.
Because trust is so vital to the overall efficacy in the employment of ADR methods, the
hindrances to trust must be removed. Currently, there are factors that obstruct Israelis and
Palestinians from achieving a workable trust relationship. First, key international countries with
major influence on Israel and Palestine need to assert more interest and pressure during
negotiations. For example, the United States has been unable to mediate successful discussions
because the Obama Administration could not overcome the contingencies on the terms of
negotiations demanded by Israeli representatives.163 The failure to bypass these contingencies
quelled all open communications for peace from the Palestinians.164 Likewise, key players have
been unable to assuage Palestinian representatives during discussions because of their “all or
nothing” position in relation to its demand of a “two state” outcome.165 The parties have been
allowed to dig deep into their positions without any country providing a bridge to cover the abyss
between the sides and without driving them further towards the precipice of prolonged conflict.
Second, past settlement activity continue to dictate the parties’ future behavior in and demands
during peace talks. For example, Palestinians fear that the Israeli government would not act in
good faith effort in order to reach resolution because of past Israeli conduct. Consequently, the
Palestinian perception is that Israelis will likely control all settlement activity and block any
likelihood of a Palestinian statehood.166 Similarly, Palestinian officials continue to state that the
163
Winston P. Nagan and Aitza M. Haddad, The Legal And Policy Implications Of The Possibility Of Palestinian
Statehood, 18 U.C. Davis J. Int’l L. & Pol’y 343, 406 (2012).
164
Id. at 406-7.
165
Id.
166
Id. at 407.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 27 border proposals by Israeli Prime Minister Netanyahu are weak,167 which further enhances the
Palestinians’ view that Israelis, during peace negotiations, are not seeking peaceful resolution in
good faith. To date, resolution has been elusive because both Israelis and Palestinians continue to
pin the blame for stalling progress because of numerous contingencies for peace discussions and
the plentiful and allegedly unreasonable demands of the opposing party. As a result, ADR
methods, suing a third party mediator, could potentially be successful. A third party mediator
could assemble the top political representatives and, over time, get to the roots of the chasms
between the sides, and artfully remove contingencies that hamper meaningful discussions due to
the perceived unreasonable and disrespectful nature by one party and those which are antithetical
to what one side requires. Doing so, may possibly eliminate the political ping pong blame game
between Israel and Palestine and may also put time limitations on negotiations as levels of trust
mature. After removing the hinderances, a mediator could create a less hostile atmosphere where
Israel and Palestine could potentially broker a peace agreement.
In theory, if the mediator could develop a positive and trusting working business
relationship between Israel and Palestine, then there is hope that it could possibly transpire into
the daily interactions between Israeli and Palestinian citizens. Daily interactions could result in
improvement with neighborly interpersonal relationships. Further, improved interpersonal
relationships between Israelis and Palestinians would, hopefully, prevent conflict and harm.
Psychologically and emotionally, it is difficult to bomb a person known, believed to be friendly
or see as similar to you.
167
Id. at 413 (“Netanyahu is still firm in his position of continuing ‘Israeli presence on the eastern border of a future
Palestinian state as part of any peace deal,’ Israeli officials have said that ‘any presence in the Jordan Valley could
be reviewed over time’”).
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 28 Some may view the prospect of peace between Israel and Palestine as being
unrealistically optimistic under all scenarios for brokering peace, even with employment of ADR
techniques. There is a widespread belief that there will always be conflict between the two sides
because the two opposing cultures are not only foundationally contradictory, but are on the
extreme ends of the spectrum. I believe that like any cultural tradition or socioeconomic trend,
once one is born into a certain situation, he/she is typically indoctrinated with the beliefs and
customs of his/her surroundings. Therefore, it is infinitely more difficult to break the cycle of
beliefs. Thus, generation after generation, I deduce that Israelis and Palestinians are born into the
deeply rooted conflict that is passed on essentially by their elders in previous generations. The
cycle will only be broken, if new generations are given a forum where contrary viewpoints are
expressed in a non-threatening manner and they are given an opportunity to interact with one
another so that preconceptions about “the enemy” are stymied or changed. Hopefully, then, the
newer generations would seek peace with on another and teach peace to future generations. The
future generations can also halt cycles of hate and conflict if they are willing to become leaders
in such change and are properly informed of dispute resolution methods at an early age. If the
future generations of Israelis and Palestinians are pro-active in breaking the cycle of hatred and
conflict, as well as taught at an early age to seek dispute resolution instead of acting out, this
positive mindset will transpire to the next generations over time and in that time improve the
overall outlook on this long embedded conflict displayed around the world.
B. ADR Furthering the Peace Process between the Israelis and Palestinians:
From the beginning of the Peace Process, Israelis have encountered a considerable
number of terrorist attacks.168 “While these attacks, most prominently suicide bus bombings in
168
Louis Rene Beres, Israel, The “Peace Process,” And Nuclear Terrorism: A Jurisprudential Perspective, 18 Loy.
L.A. Int’l & Comp. L.J. 767, 791 (1996).
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 29 Tel Aviv, Ramat Gan and Jerusalem, were painful and costly, they pale in comparison to the
possibilities. From the standpoint of potential harms, these sorts of bus bombings cannot begin to
compare to the prospect of nuclear terrorism.”169 As time continues and new advances in terrorist
attack techniques and resources become available, terrorists targeting Israel will become more
innovative in the potential harm they can cause.170 “Building a national consensus about what
each side wants is imperative to resolution of the conflict, because the consensus can inform the
content and structure of a peace agreement.” 171 Thus, being aware of the content and structure
can frame an approach in which the governing bodies can advance in negotiation talks.
When it boils down to the ways about which the Palestinian and Israeli leaders could
negotiate division of the subject land, dispute resolution forums could assist in producing three
situational outcomes. At one extreme, the Palestinian perspective lies displaying what resolution
of the conflict would be in their favor.172 Even so, an Israeli surrender, “a complete withdrawal
of Jews from the region and establishment of a Palestinian state in what is now Israel and the
Territories.”173 In the middle of the two outlying extreme outcomes, is having the Israeli forces
withdrawal from the Territories and East Jerusalem, thus creating a Palestinian state.174 The other
extreme, is seen as the Palestinian surrender. Additionally, Palestinians would depart from the
Palestinian territories and move to other Arab countries, leaving the land to be controlled by
Israel, thus allowing for a total Jewish state.175 Though these extreme outlying options seem to
be unrealistic, the middle favors the “two-state solution” and is the most likely to be attainable
through dispute resolution techniques. The extreme reservation points held by the Israelis and
169
Id.
Id. at 791-92.
See Orevi, supra note 61, at 143.
172
See Korobkin and Zasloff, supra note 65, at 8.
173
Id.
174
Id.
175
Id.
170
171
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 30 Palestinians could provide explanation as to why such conflict has not been successful in
negotiation efforts. Failed efforts to successfully negotiate within the Israeli-Palestinian conflict
can be seen a roadblocks. Three explanations of potential roadblocks can be addressed. First,
conflict has not be resolved as a result that the Israelis, Palestinians, or even both having to high
of reservation points, thus preventing any potential negotiation to transpire; this suggest that each
are content with continual warfare.176 Secondly, there is a potential agreed upon land agreement,
but such agreement is being prevented from blossoming due to a minority of actors within Israel,
Palestine, or a combination from both.177 Lastly, there is a potential mutual agreement regarding
the land, but both parties act against this option by continuing to seek a better deal than the one
currently on the table.178 Referring this last situation to a forum for ADR, the possibility of
always seeking a better deal would be eliminated from the situation. Using ADR, would allow
for each party to display what they are ultimately seeking. By doing so, a mediator could act in a
way to reach the ultimate best solution to the conflict in order to prevent each party from
believing in or seeking a better deal, which is essentially preventing any solution.
In the real world, even if both sides mutually agreed upon a final resolution of the
conflict, then the Palestinian government would be unlikely to guarantee against the threat of
violence against Israelis following the finalized accord.179 Unfortunately, violence against each
other will likely persist because some citizens may not have sufficiently “bought in” the peace
process because they might be operating under the way things used to be as opposed to how
things exist now. These citizens are unfamiliar with citizens of the other side and may not be
properly reined in by the government. The feelings of ownership toward the land are intense.
176
Id. at 10.
Id.
Id.
179
Id. at 16.
177
178
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 31 Should peace ever come to fruition, it would take time for the governments to convince their
constituents to act in a peaceful manner toward the opposing side. At present, then, there may
never be a “perfect” resolution for peace between Israel and Palestine because violence against
the adversary is banal and a party of acceptable norm for both factions. Thus, Palestinians must
propose security measures to protect Israelis against any further attacks following any peace
accord, harshly punishing actors as a deterrent against future acts of terror.180 An agreement to
thwart attacks on Israeli citizens, would further engender feelings of trust between Palestinians
and Israelis. This agreement could allay the potential fears of the Israeli Jews, who have been the
target181 of may terrorist attacks over the years. As a result, Israeli Jews are likely to corroborate
with the peace agreement presently and possibility in the future.
An additional practice to achieving peace includes non-violence dispute resolution
methods such as dialogue, reconciliation, utilization of media, educating the public, and political
outreach.182 One of the most universal methods of progressing forward positively in time is
learning from past events, even though it is recognized that both sides of the conflict, Israelis and
Palestinians, have suffered and have been victims of violence at various points throughout
history.183 This holistic method of reaching peace focuses on the people itself.184 Education is a
catalytic factor in furthering potential agreements between the people and governing bodies. “It
follows that a discussion of the conflict is incomplete without education about the presence of
non-violence, as it is an essential piece to peace building and making progress toward resolution
of the Israeli-Palestinian conflict.”185 Non-violence, is extremely difficult in today’s world, as
180
Id. at 16.
Vanessa Gera, Leader: 70 years after Auschwitz, Jews being targeted again, The Denver Post, available at,
www.denverpost.com/nationworld/ci_27406984/leader-70-years-after-auschwitz-jews-being-targeted.
182
See Orevi, supra note 61, at 133.
183
Id. at 105, 132.
184
Id. at 132.
185
Id. at 132.
181
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 32 there will always be some degree of hate and hostility. However, engaging in a process of
attaining non-violent actions is surely an avenue that leads to lasting peace and decreased
fatalities in conflict areas. Forming organizations within Israeli and Palestinian territories that
focus on uniting the two for participation in dialogue further stimulates enduring peace as well as
fosters educational fora for both parties. Each side, Israelis and Palestinians, would gain
knowledge and understanding of the others’ viewpoint. The conflicting parties could model
organizations which could accomplish a modicum of success in the peace discussions such as
The Parents Circle, Combatants for Peace, OneVoice, Seeds of Peace, Shatil of the New Israel
Fund, and Blue White Future.186
The “Two State” Agenda alternative would allow Palestine to be an independent state.187
However, the Israeli representatives frequently refuse this option based on their standpoint that
Palestinian representatives are presenting an inflexible “all or nothing” proposition. 188
International law generally provides that for an entity to be considered as a state it must meet
four requirements: (i) “a permanent population;” (ii) “a defined territory;” (iii) an authority
exercising governmental functions, and (iv) a capacity to conduct foreign relations. 189
Palestinians refuse to settle for the “Two-State” option because it would be deemed an
unfavorable concession which allows for the existence of a Jewish state beside them. 190
Conceptually then, the Palestinians would lack complete control over the entire sect of land of
focus. With a lack of control, it is believed that “it is not the State of Israel within its 1967
borders that is being challenged. It is Israel[i] occupation, the relentless enlargement of
186
Id. at 133.
Bobbette Deborah Abraham, From Mandate To Mineshaft: The Long Rocky Road To The Modern State Of
Israel, 5 Regent J. Int’l L. 123, 172-3 (2007).
188
Id.
189
See Breger and Quast, supra note 141, at 224.
190
See Bobbette Deborah Abraham, supra note 189 at 173.
187
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 33 settlements, its dispossession of the Palestinian people in the West Bank and East Jerusalem, and
the humanitarian disaster caused by its blockade of Gaza that are the target if international anger
and condemnation.”191 The Israeli fear of a declared state of Palestine became also extends to
concerns that Palestinians would essentially overrule additional surrounding lands due to
Palestine’s means and resources that would exist once a state foundation is laid
My theory is that the only way peaceful negotiations will be achieved is if respect is
given to each parties’ desires, though they may not achieve all that they are seeking, creating
trust will certainly enhance the possibility of reaching a cordial end to the conflict. Each party
needs to be responsible for influencing the lowest level of citizens with educating and preaching
peaceful means of carrying on relationships with their neighbors. Once a basis foundation of
respect is established between the Israelis and Palestinians, trust will then flourish. If respect and
trust can be recognized between your everyday citizen and neighbor all the way to the high level
authority officials, there can be hope for peace to thrive as an end result.
The idea of sharing sacred space is an additional roadblock in continuing the peace
process.192 193 “As The New York Times reported, rabbis stated that “the Temple Mount is the
holiest place to the Jewish people,”194 and that there is “a religious, sovereign, moral and
historical right of the Jewish people to this mount” that predates the birth of other religions.”195
191
See Nagan and Haddad, supra note 163, at 418.
Marc Gopin, Shared Public Space And Peacemaking: New Visions Of Place In Israel And Palestine, 26-SPG
Fletcher F. World Aff. 101, 103-4 (2002).
193
While traveling, a stark observation displayed the three religions, Christianity, Judaism, and Islam, essentially
being next door to each other, if not literally built on top of each other within such a small area. Walking within the
Old City of Jerusalem, there was all different cultures. The Muslim Quarter, Christian Quarter, Jewish Quarter, and
Armenian Quarter all neighbored to each other. There were Jewish men and women praying at the Western Wall,
Christians walking along the Via Dolorosa, and the Muslim call to prayer being played over the mosque loud
speaker. There is no situation within American society, nor any educational classroom that could present the
intermixing yet separation of three religions so close together. It simply is beautiful, though can be seen as the
reason behind all the conflict and bloodshed terrorist attacks. As displayed earlier, the Temple Mount is a continual
sacred place of conflict in the Israeli-Palestinian Conflict.
194
See Gopin, supra note 195 at 107.
195
Id.
192
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 34 Likewise, the key Islamic leaders have echoed parallel viewpoints. For instance, Sheikh Sabri,
the Mufti of Jerusalem, declared, “we cannot permit any non-Muslim sovereignty over the entire
area of Al-Aqsa, either above or below ground.”196 The land has been around so long that it
unfolds like layers. One religious site built upon another over time. Jewish scared ruins of Jewish
temples can be found on the underneath, and directly above these ruins sits Palestinian
mosques.197 The parties must repeat and recognize that there is an overlapping of holy sites, both
sides justifiably designate the same sites as being “holy sites”. However, the basis for the
holiness of the holy sites are distant. In practice, it would be extremely complicated , if not
incomprehensible, to grant both cultures the power to retain control over its holy site. Both sides
deem the same site holy as well, but its practice at the holy site might contrast to the point of
conflict. The following principles, respect, tolerance, and openness where ideas are shared, are
essential in substantiating a collaborative relationship between the Jewish and Muslim people.
Once a working cooperation is in place, then, perhaps both sides may share holy sites. In
addition, the West Bank has shown improvements in economic growth, security, and stability
thus providing a sense of hope in the future to come.198 A peace agreement will never create a
blank slate in an area of such immense historical and religious conflict, but if such peace
agreement is reached between the Israelis and Palestinians, a foundational law for the land would
be created to be consistent in improving the future.199
196
Id.
Id. at 107-8.
See Orpett, supra note 47, at 345.
199
Id. at 392.
197
198
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 35 V. CONCLUSION
A. The Future of Israel
On January 9, 2015, France was the recipient of an Islamist terror attack directed at a
kosher supermarket on the eve of Shabbat.200 The terrorist attack was in the wake of the previous
attack toward the staff of the satirical French publication, Charlie Hebdo, in which twelve
individuals were killed.201 This attack was ignited in reaction to the comic publication that
tweaked Muslims by referring to Islamic Sharia law, and featuring a cartoon of Muhammad with
the caption, “100 lashes if you are not dying of laughter.”202 Shortly after, on January 21, 2015,
Tel Aviv was confronted with a terrorist attack in which eleven Israelis were stabbed while
aboard a city bus by a Palestinian man.203 In light of these terrorist attacks, Prime Minister
Benjamin Netanyahu displayed his concern for the Jewish people. “To all the Jews of France, all
the Jews of Europe, I would like to say that Israel is not just the place in whose direction you
pray; the state of Israel is your home,” Prime Minister Netanyahu stated in a televised address
encouraging the Jewish that are French citizens to openly return to that state of Israel.204 205 The
biblical history regarding the land of Israel begins with Abraham, the patriarch of the future
200
Ricky Ben-David and Times of Israel Staff, 4 dead as French forces storm kosher supermarket, kill gunman;
Charlie Hebdo terrorist brothers also killed, The Times of Israel, available at, http://www.timesofisrael.com/terroronslaught-in-paris/.
201
Virginia Power and Larry Mcshane, Two suspected terrorists located, seven arrests made after three masked
gunmen slaughter 12 in Paris at satirical magazine Charlie Hebdo, Daily News, available at,
http://www.nydailynews.com/news/world/1-killed-3-injured-shooting-french-satirical-paper-article-1.2068486.
202
Id.
203
Krishnadev Calamur, At Least 11 Israelis Stabbed Aboard Tel Aviv Bus, NPR, available at,
http://www.npr.org/blogs/thetwo-way/2015/01/21/378796372/palestinian-stabs-at-least-11-israelis-aboard-tel-avivbus.
204
William Booth and Ruth Eglash, In Israel, debate over whether French Jews should come - or stay home, The
Washington Post, available at, http://www.washingtonpost.com/world/middle_east/in-israel-debate-over-whetherfrench-jews-should-come--or-stay-home/2015/01/15/dca63384-9aa3-11e4-96cc-e858eba91ced_story.html (“The
coming of the French Jews, said Natan Sharansky, chairman of the Jewish Agency for Israel, is “a unique historical
phenomenon” that poses new challenges and opportunities for Israel.”).
205
Biblical text also refers to the order of return regarding the Jewish people in Isaiah 43:5-6 stating, “(5) Fear not,
for I am with you; I will bring your descendants from the east, And gather you from the west; (6) I will say to the
north, ‘Give them up!’ And to the south, ‘Do not keep them back!’ Bring My sons from afar, And My daughters
from the ends of the earth. New King James Version (NKJV)
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 36 Jewish nation, also known as the Promised Land.206 Specifically in the Torah, the land of Israel
is described as the good land and “a land flowing with milk and honey”.207 The land of Israel is
most significantly tied to the Jewish people. “A substantial portion of Jewish law is tied to the
land of Israel, and can only be performed there. Some rabbis have declared that it is a mitzvah
(commandment) to take possession of Israel and to live in it (relying on Num. 33:53).”208 Jews
living outside of Israel are essentially living in exile, because it is outside of their promised
land.209 Recognizing the statement regarding Jews living outside of their promise land, provides
reasoning for the ultimate return of Jews to the land of Israel.
Prime Minister Netanyahu’s recent reelection for his fourth term,210 has initiated dialogue
relating to his position regarding Palestine becoming its own state.211 Prime Minister Netanyahu
appears to believe that a two state solution is impossible at this time. 212 Prime Minister
Netanyahu does not seem to be opposed to the two-state solution. He asserted, “I want a
sustainable, peaceful two-state solution, but for that, circumstances have to change…To make it
achievable, then you have to have real negotiations with people who are committed to peace.”213
Prime Minister Netanyahu has declared that the Palestinians must view Israel as a state for
206
Genesis 12:7 “ Then the Lord appeared to Abram and said, “To your descendants I will give this land.” And there
he built an altar to the Lord, who had appeared to him.”
The Promised Land, Judaism 101, available at, http://www.jewfaq.org/israel.htm; see also Exodus 3:8 “So I have
come down to deliver them out of the hand of the Egyptians, and to bring them up from that land to a good and large
land, to a land flowing with milk and honey, to the place of the Canaanites and the Hittites and the Amorites and the
Perizzites and the Hivites and the Jebusites.”
208
Id.
209
Id.
210
Haaretz, World reacts to Israel’s choice of Netanyahu for a fourth term, Haaretz, available at,
www.haaretz.com/news/israel-election-2015/.premium-1.647683
211
Adam Edelman and Dan Friedman, Netanyahu promises no Palestinian state if reelected, Daily News, available
at, m.nydailynews.com/news/politics/netanyahu-promises-no-palestinian-state-reelected-article-1.2150936
212
Jodi Rudoren and Michael D. Shear, Israel’s Netanyahu Reopens Door to Palestinian State, but White House Is
Unimpressed, The New York Times, available at, http://mobile.nytimes.com/2015/03/20/world/middleeast/israelnetanyahu-elections-palestinian-state.html?referrer=&_r=0.
213
Id.
207
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 37 Jewish individuals for peace and respect to exist between the two groups.214 Overall, Prime
Minister Netanyahu has clearly demonstrated his loyalty to the Jewish Israel citizens; in effect,
then, Prime Minister Netanyahu has ostensibly postponed any future peace talks because he
believes consensus is unachievable today.
As the parties profess in resolving the Israeli-Palestinian conflict, media coverage must
be used as an education tool to inform civilians of available non-violent alternatives as well as
provide information on how to participate in non-violent processes. 215 The international
community must focus on contributions by surrounding countries which undermine peace
efforts.216 Arab nations, such as Iran, Qatar, Turkey, provide support and weapons to Hamas,
which equips extremists for violence.217 The international community might be able to convince
countries to use their monetary contributions for humanitarian purpose, such as providing
resources of food and water, and health and education in areas stricken by bombings and
violence instead of instigating additional conflicts.218 Directing efforts and funding to improve
the quality of life for Israeli and Palestinian citizens will likely encourage overall peace. The
United States has reinforced that a peaceful resolution will only come about through the direct
negotiations involving both the Israelis and Palestinians.219 220Israel’s security interest is highly
dependent on the United States’ support, in order to obtain a negotiated settlement with the
214
See Nagan and Haddad, supra note 163, at 419-20 (“…the Palestinians would never agree to accept Israel as an
exclusively ethnic Jewish state when there are over a million Israeli Arab citizens living there.”).
See Orevi, supra note 61, at 147.
216
Josh Levs, Which Mideast power brokers support Hamas?, CNN, available at,
www.cnn.com/2014/08/06/world/meast/mideast-hamas-support/.
217
Id.
218
Id. at 151-53.
219
See Nagan and Haddad, supra note 163, at 417.
220
Many Israelis that I spoke to while traveling displayed their concern that the United States is no longer fully
invested in the outcome and well-being of the state of Israel. My discussions with individuals while in Israel
displayed a widespread dislike for President Obama from what I observed while traveling. Many expressed the
belief that President Obama is and has not been working in favor of the state of Israel.
215
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 38 Palestinians, regarding a two-state solution. 221 Ultimately, many Israelis believe the global
community as a whole only stands to gain from the establishment of a Palestinian state that could
coexist peacefully with the state of Israel, believing this would be the gateway to reducing
violence and helping decrease and control extremist terrorist attacks.222
Concluding, it is plausible for the Israeli-Palestinian conflict to improve its economic
stability and interactions with one another by incorporating traditional Jewish and Islamic
dispute resolution customs into daily disputes. Promoting trust and respect for each others
cultural and religious difference will work to reduce conflict revolving around sacred holy sites.
Incorporating an ADR mindset at the basic civilian standing, all the way to officials with highest
authority within Israel and Palestine, will help to promote non-violent resolution to the peace
process that has been in action for many years.
221
See Nagan and Haddad, supra note 163, at 422-425.
Id. at 441 (concluding that “the united “nations” ought to include a Palestinians state; the Palestinian people
possess all, or nearly all, the traditional Montevideo characteristics of a traditional state, yet still have not been
recognized.”).
222
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 39 EXAMINING THE ENFORCEABILITY OF ARBITRATION CLAUSES IN CORE
BANKRUPTCY PROCEEDINGS
Joseph R. Shakibanasab
The purpose of this article is to examine the issue of whether arbitration clauses survive
in core bankruptcy proceedings. Neither the Supreme Court nor Congress has addressed the
issue.1 Naturally, the circuits have become split as to when bankruptcy courts have the discretion
to refuse enforcing an arbitration agreement. Matters have become more complicated with
jurisdictional issues arising from Stern v. Marshall.2
This article begins by briefly discussing arbitration, the federal policy favoring
arbitration, and the Supreme Court's interpretation of the Federal Arbitration Act. The article
then shifts focus to bankruptcy laws and recent constitutional issues stemming from Stern. Next
is an examination of the survival of arbitration clauses in bankruptcy proceedings, the circuit
split, and specifically how some lower courts and the Fourth Circuit have dealt with arbitration
clauses in the aftermath of Stern. The article then concludes by considering suggested scholarly
proposals to resolve the issue.
I:
A Background to Arbitration.
Arbitration is a method of dispute resolution that results in an adjudication.3 Typically, a
neutral third party or tribunal hears the disputed issue and makes a decision acting as the judge
1
Eva Kang, Do Arbitration Clauses Survive Into Bankruptcy? Lifting the Automatic Stay to Compel Debtors Into
Arbitration, CBLR ONLINE, (Feb. 25, 2013, 2:31 PM), http://cblr.columbia.edu/archives/12534.
2
Stern v. Marshall, 131 S. Ct. 2594 (2011).
3
JOHN BURWELL GARVEY & CHARLES B. CRAVER, ALTERNATIVE DISPUTE RESOLUTION: NEGOTIATION,
MEDIATION, COLLABORATIVE LAW, AND ARBITRATION, 207-08 (2013).
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 40 and jury.4 The overall goal of arbitration is efficiency.5 It is designed to streamline disputes in
order to be quicker and less costly than traditional litigation.6 Rules of evidence tend to be more
relaxed, and parties may agree to their own governing laws or rules.7 Proceedings are informal
and flexible compared to courts.8
In the past, courts were very hostile and hesitant when it came to enforcing arbitration
provisions.9 This prompted Congress in 1925 to pass the Federal Arbitration Act.10 Section 2 of
the Act provides that agreements to arbitrate "shall be valid, irrevocable, and enforceable, save
upon such grounds as exist at law or in equity for the revocation of any contract."11 Although it
eased tensions, courts were still defensive when it came to arbitration. However, in the 1980's,
the Supreme Court took a dramatic shift in its stance to enforcing arbitration provisions. 12
Shearson/American Express, Inc. v. McMahon examined the issue of whether a predispute arbitration agreement was enforceable when claims alleging fraud under the Securities
Exchange Act and RICO were brought against a brokerage firm.13 Summarizing the
developments in arbitration, the Court stated that the purpose of the Act was to reverse judicial
hostility towards arbitration14 and establish a strong federal policy favoring arbitration.15 The
Court noted that standing alone, the Act mandates the enforcement of arbitration agreements, and
4
Id. at 207.
See Id. at 208.
6
Id. at 208.
7
GARVEY & CRAVER, supra note 3, at 208-09.
8
Id. at 208-09.
9
Id. at 210; see also Paul F. Kirgis, ADR Meets Bankruptcy: Cross-Purposes or Cross-Pollination?: Arbitration,
Bankruptcy, and Public Policy: A Contractarian Analysis, 17 AM. BANKR. INST. L. REV. 503, 512-14 (2009).
10
GARVEY & CRAVER, supra note 3, at 210-11; Kirgis, supra note 9, at 511.
11
Federal Arbitration Act, 9 U.S.C.A. § 2 (1947).
12
See Kirgis, supra note 9, at 512 ("Courts, especially the Supreme Court, have used it to push a radically proarbitration agenda.").
13
Shearson/American Express v. McMahon, 482 U.S. 220 (1987).
14
McMahon, 482 U.S. at 225 (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 510 (1974)).
15
Id. at 226 (quoting Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24 (1983)).
5
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 41 such agreements are to be rigorously enforced.16 The Court held that parties opposing arbitration
have the burden "to show that Congress intended to preclude a waiver of judicial remedies for
the statutory rights at issue. . . . Such an intent 'will be deducible from the statute’s text or
legislative history,' or from an inherent conflict between arbitration and the statutes underlying
purposes."17 The Court further found that in enforcing the arbitration clause, Congress did not
intend to preclude the plaintiffs' claims from arbitration. 18
II:
A Background to Bankruptcy.
When a person or entity becomes overburdened with debt, bankruptcy may be an avenue
for relief. The Constitution gives Congress the power to establish "uniform Laws on the subject
of Bankruptcies throughout the United States."19 Bankruptcy law has two purposes, to give an
unfortunate debtor a fresh start and to protect the interest of creditors.20 An automatic stay goes
into effect when the debtor files for bankruptcy, and creditors must file a proof of claim or
motion for relief from the automatic stay.21 Not only does this protect the debtor from collection
efforts, it also prevents creditors from unfairly benefiting at another's expense.22 This centralizes
the dispute and prevents piecemeal litigation in order to help rehabilitate the debtor, while
protecting the interests of creditors.23
In 1978, Congress enacted the Bankruptcy Reform Act which eliminated the summary
and plenary jurisdiction and gave bankruptcy judges "jurisdiction over 'all civil proceedings
16
Id. at 226 (quoting Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 221 (1985)).
482 U.S. at 227 (citations omitted).
18
482 U.S. 220.
19
U.S. CONST. art. 1, § 8, cl. 4.
20
See Kirgis, supra note 9, at 505; see also ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS,
BANKRUPTCY JUDGES DIVISION, BANKRUPTCY BASICS, 6 (3d ed. 2011).
21
See Kirgis, supra note 9, at 505-06; see also Kang, supra note 1.
22
See Kirgis, supra note 9, at 505-06.
23
See, e.g., Phillips v. Congelton, L.L.C. (In re White Mountain Mining Co., L.L.C.), 403 F.3d 164, 170 (4th Cir.
2005); Continental Insurance. Co. v. Thorpe Insulation Co. (In re Thorpe Insulation Co.), 671 F.3d 1011, 1023 (9th
Cir. 2012).
17
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 42 arising under title 11 or arising in or related to cases under title 11.'"24 The Supreme Court in
Northern Pipeline Construction Co. v. Marathon Pipe Line Co. held the Bankruptcy Reform Act
unconstitutional because Congress could not vest Article III jurisdiction to Article I courts.25
Congress responded with reclassifying claims as either core or non-core.26 Bankruptcy courts
24
See Executive Benefits Insurance Agency v. Arkison, 134 S. Ct. 2165, 2170-71 (2014) (quoting 28 U.S.C. §§1471
(b)-(c) (1976 ed., Supp. IV)).
25
Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).
26
See Executive Benefits, 134 S. Ct. at 2171-72; Section 157(b)(2) of Title 28 of the United States Code Annotated
provides a non-exhaustive list of core claims, it states:
(2) Core proceedings include, but are not limited to-(A) matters concerning the administration of the estate;
(B) allowance or disallowance of claims against the estate or exemptions from property of the
estate, and estimation of claims or interests for the purposes of confirming a plan under chapter
11, 12, or 13 of title 11 but not the liquidation or estimation of contingent or unliquidated personal
injury tort or wrongful death claims against the estate for purposes of distribution in a case under
title 11;
(C) counterclaims by the estate against persons filing claims against the estate;
(D) orders in respect to obtaining credit;
(E) orders to turn over property of the estate;
(F) proceedings to determine, avoid, or recover preferences;
(G) motions to terminate, annul, or modify the automatic stay;
(H) proceedings to determine, avoid, or recover fraudulent conveyances;
(I) determinations as to the dischargeability of particular debts;
(J) objections to discharges;
(K) determinations of the validity, extent, or priority of liens;
(L) confirmations of plans;
(M) orders approving the use or lease of property, including the use of cash collateral;
(N) orders approving the sale of property other than property resulting from claims brought by the
estate against persons who have not filed claims against the estate;
(O) other proceedings affecting the liquidation of the assets of the estate or the adjustment of the
debtor-creditor or the equity security holder relationship, except personal injury tort or wrongful
death claims; and
(P) recognition of foreign proceedings and other matters under chapter 15 of title 11.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 43 had jurisdiction over core claims to enter final judgment, but with non-core claims, bankruptcy
courts would make proposed findings of fact and conclusions of law, and district courts would
enter final judgment.27
Anne Nicole Smith's complex legal battle with Pierce Marshall, lead to Stern v.
Marshall.28 In Stern, Anne Nicole Smith filed bankruptcy, and Marshall filed a proof of claim for
defamation. She counterclaimed for tortious interference with her husband's estate.29 The
Bankruptcy Court entered summary judgment for Anne Nicole Smith on the defamation claim,
and later awarded her over $400 million in damages for the counterclaim of tortious
interference.30 Both parties were deceased and represented by their estates by the time the matter
reached the Supreme Court.31 The issue was whether the Bankruptcy Court had jurisdiction to
hear the tortious interference counterclaim against Marshall.32
The Supreme Court held that no public right exception existed, thus the Bankruptcy
Court lacked authority to enter final judgment on the counterclaim.33 Bankruptcy courts are
Article I courts because they lack the Article III protection of life tenure and compensation,
which is integral to the system of checks and balances.34 This holding gave rise to a third
category of claims, "Stern Claims." Stern Claims are those "designated for final adjudication in
the bankruptcy court as a statutory matter, but prohibited from proceeding in that way as a
constitutional matter."35 The Stern plurality stated, "[C]ongress may not bypass Article III simply
27
See 28 U.S.C.A. § 157 (1984); See also Executive Benefits, 134 S. Ct. at 2171-72.
See Stern, 131 S. Ct. 2594.
29
See 131 S. Ct. at 2601.
30
Id.
31
See id. at 2600.
32
Id.
33
See id. at 2620.
34
See id. at 2608-11.
35
See Executive Benefits, 134 S. Ct. at 2167.
28
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 44 because a proceeding may have some bearing on a bankruptcy case; the question is whether the
action at issue stems from the bankruptcy itself or would necessarily be resolved in the claims
allowance process."36
In 2014, Executive Benefits was decided.37 That case involved a trustee who filed a
fraudulent conveyance claim in the bankruptcy court against a non-creditor.38 The Supreme
Court attempted to close the gap left by Stern, holding that Stern Claims should be treated as
non-core claims due to the Act's severability provision.39 When bankruptcy courts identify Stern
Claims, they may submit proposed findings of fact and conclusions of law to the district court for
de novo review and final judgment.40 Another important note, the Supreme Court granted
certiorari to address two issues left open by Stern, one of them being whether bankruptcy courts
can exercise Article III judicial power on a basis of litigant consent, and implied consent based
on the litigant's conduct.41
III:
The Enforceability of Arbitration Clauses in Bankruptcy Proceedings.
When arbitration and bankruptcy meet, the issue becomes whether or not a bankruptcy
court has the discretion to refuse enforcing an arbitration agreement. Neither the Supreme Court
nor Congress has addressed the issue.42 Generally, courts are to enforce arbitration agreements
due to the Federal Arbitration Act and strong federal policy.43 As such, courts generally agree
36
See Stern, 131 S. Ct. at 2618.
See Executive Benefits, 134 S. Ct. at 2165.
38
See id.
39
Id. at 2173.
40
Id. at 2174.
41
See Wellness Int'l Network, Ltd. v. Sharif, 727 F.3d 751 (7th Cir. 2013), cert. granted in part, ___ U.S. ___, 134
S. Ct. 2901 (2014).
42
Kang, supra note 1.
43
See Kirgis, supra note 9, at 512; Kang, supra note 1.
37
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 45 that non-core claims subject to an arbitration agreement should be submitted to arbitration.44 But
when the claim is core, the circuits disagree as to when the bankruptcy court has the discretion to
deny enforcing the arbitration provision.45
Appellate Courts have used the standard laid out in McMahon to develop similar but
different tests to determine when the bankruptcy court has the discretion to deny enforcing the
arbitration provision.46 The Third and Fifth Circuits use a two-part test, "whether the proceeding
derives exclusively from the provisions of the Bankruptcy Code, and if so, whether arbitration of
the proceeding would conflict with the purposes of the Code."47 The Second and Fourth Circuits
only look at the second part of the test to answer the question, "whether there is an inherent
conflict between arbitration and the underlying purposes of the bankruptcy laws."48 The Eleventh
and Ninth Circuits have also addressed the issue. 49
In developing the two-part test, the Third and Fifth Circuits examined the relevance and
source, whether the proceeding at issue was core or non-core. Specifically, they analyzed that
distinguishing between core and non-core, although relevant, only determines whether the
bankruptcy court can make a final adjudication, not whether the bankruptcy court has the
discretion to deny enforcing an arbitration agreement.50 In addition, these Circuits give greater
44
See, e.g., Kerry A. Brennan & Alexander Parachini, Client Alert: Circuit Split in Enforceability of Arbitration
Clauses in Bankruptcy Left Unresolved, PILLSBURY (Nov. 28, 2012),
http://www.pillsburylaw.com/siteFiles/Publications/AlertNovember2012Insolvency_Restructuring_CircuitSplitinEn
forceabilityofArbitrationClausesinBankruptcyLeftUnresolved.pdf; see also Kirgis, supra note 9, at 517-18.
45
See, e.g., Brennan & Parachini, supra note 44; Kirgis, supra note 9, at 519-21.
46
See, e.g., Kirgis, supra note 9, at 517; see also Marianne B. Culhane, Limiting Litigation over Arbitration In
Bankruptcy, 17 AM. BANKR. INST. L. REV. 493, 493-94 (2009).
47
See, e.g., In re National Gypsum Co., 118 F.3d 1056, 1067 (5th Cir. 1997); Mintze v. Am. Fin. Servs., Inc. (In re
Mintze), 434 F.3d 222, 230 (3d Cir. 2006).
48
See, e.g., Phillips v. Congelton, L.L.C. (In re White Mountain Mining Co., L.L.C.), 403 F.3d 164 (4th Cir. 2005);
Brennan & Parachini, supra note 44.
49
See Continental Insurance. Co. v. Thorpe Insulation Co. (In re Thorpe Insulation Co.), 671 F.3d 1011 (9th Cir.
2012); Whiting-Turner Contracting Co. v. Electric Machinery Enterprises, Inc. (In re Elec. Mach. Enters.), 479 F.3d
791 (11th Cir. 2007).
50
See In re National Gypsum Co., 118 F.3d at 1067; In re Mintze, 434 F.3d at 229.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 46 weight to rights arising from the Code, whereas debtor-derivative claims will usually be sent to
arbitration.51
For instance, in American Financial Services, Inc. v. Mintze (In re Mintze), the debtor
was a retired and disabled homeowner.52 After her heater went out, she entered into a home
equity loan agreement where she agreed to consolidate her debt in order to purchase a new
heater.53 She fell behind and filed Chapter 13 bankruptcy.54 The lender filed a proof of claim
against the estate.55 The debtor filed a complaint against the lender alleging the loan was an
illegal and abusive home equity loan, sought rescission of the mortgage under the Truth in
Lending Act, along with other state and federal claims.56 The lender filed a motion to compel
arbitration.57 The parties stipulated that the matter was a core proceeding.58 The court denied the
motion, and the district court affirmed. 59
On appeal, the lender argued for the first time that the Bankruptcy Court lacked
discretion to deny the enforcement of the arbitration clause.60 The Third Circuit reversed and
remanded the case.61 The Circuit Court stated that core/non-core distinction determines only
whether there is jurisdiction to make a full adjudication, not whether the bankruptcy court has
discretion to refuse to enforce an arbitration clause.62 The Federal Arbitration Act's mandate
requires the enforcement of arbitration, and "the McMahon standard requires congressional
51
See Culhane, supra note 46, at 496-99.
In re Mintze, 434 F.3d at 226.
53
Id. at 226.
54
Id.
55
Id.
56
In re Mintze, 434 F.3d at 226.
57
Id. at 226-27.
58
Id.
59
Id.
60
In re Mintze, 434 F.3d at 232.
61
Id. at 233
62
Id. at 229.
52
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 47 intent 'to preclude a waiver of judicial remedies for the statutory rights at issue.'” 63 Because the
debtor's claims did not derive from the Bankruptcy Code, but from federal and state statutes, the
Court reasoned there was no bankruptcy claims at issue to be decided by the Bankruptcy Court,
thus no inherent conflict between arbitration and the Bankruptcy Code to satisfy McMahon.64
The Court concluded that the Bankruptcy Court lacked the authority and discretion to deny the
enforcement of the arbitration clause. 65
The Fifth Circuit used the same standard as the Third Circuit. In re National Gypsum Co.,
the matter at issue dealt with an insurer attempting to collect pre-confirmation debts against the
debtor's successor.66 The insurer was a signer of the Wellington Agreement, which called for the
advance payments by signatory insurers on behalf of non-signatory insurers of asbestos
producers.67 After the debtor's plan of reorganization was affirmed, the insurer began collection
efforts for the pre-confirmation advances.68 The debtor filed a declaratory judgment adversary
proceeding against the insurer seeking that the discharge injunction and confirmed
reorganization plan barred recovery.69 The insurer filed a motion for arbitration. 70 On appeal, the
Fifth Circuit stated:
We think that, at least where the cause of action at issue is not derivative of the
pre-petition legal or equitable rights possessed by a debtor but rather is derived
entirely from the federal rights conferred by the Bankruptcy Code, a bankruptcy
court retains significant discretion to assess whether arbitration would be
consistent with the purpose of the Code, including the goal of centralized
resolution of purely bankruptcy issues, the need to protect creditors and
63
Id. at 232 (quoting McMahon, 482 U.S. at 227).
In re Mintze, 434 F.3d at 233.
65
In re National Gypsum Co., 118 F.3d 1056.
66
Id. at 1059.
67
Id. at 1058-59.
68
Id. at 1059.
69
In re National Gypsum Co., 118 F.3d at 1060-61.
70
Id.
64
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 48 reorganizing debtors from piecemeal litigation, and the undisputed power of a
bankruptcy court to enforce its own orders.71
In contrast, the Second, Fourth, and Ninth Circuits have been more liberal in determining
whether or not a bankruptcy court has the discretion to refuse enforcing an arbitration clause.72
They use only the second part of the test, "whether there is an inherent conflict between
arbitration and the underlying purposes of the bankruptcy laws."73
For example, in Phillips v. Congelton, L.L.C. (In re White Mountain Mining Co., L.L.C.),
the dispute involved an international arbitration agreement, where arbitration was to be
conducted in London.74 Joseph Phillips and Arquebus Trust, a private trust wholly owned by
Phillips, owned White Mountain Mining Company, L.LC.75 A fifty-percent interest was sold to a
foreign investment trust.76 The parties executed a sales agreement and an operating agreement,
which provided for any dispute or controversy to be decided by final and binding arbitration in
London.77 Phillips and Arquebus Trust then assigned their fifty-percent interest in White
Mountain to Mowbray, L.L.C., which was also owned by Phillips.78 The foreign investment firm
assigned its interest to Congelton, L.L.C.79 Due to geological conditions and roofs collapsing,
White Mountain was shut down and Phillips advanced over ten million dollars to meet
expenses.80
71
Id. at 1069.
Compare In re Mintze, 434 F.3d 222, with In re White Mountain Mining Co., L.L.C., 403 F.3d 164, and In re
Thorpe Insulation Co., 671 F.3d 1011.
73
See e.g., In re White Mountain Mining Co., L.L.C., 403 F.3d at 169; see also Brennan & Parachini, supra note 44.
74
In re White Mountain Mining Co., L.L.C., 403 F.3d at 164.
75
Id. at 166.
76
Id.
77
Id.
78
In re White Mountain Mining Co., L.L.C., 403 F.3d at 166.
79
Id.
80
Id. at 166-67.
72
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 49 Congelton commenced arbitration in London, alleging that the advances were
contributions to capital and not loans, and that Phillips misrepresented White Mountain's
prospects and financial conditions to induce the sale.81 Phillips filed an involuntary Chapter 11
petition against White Mountain.82 Then Phillips initiated an adversary proceeding in the
bankruptcy court against White Mountain, Mowbray and Congelton, seeking to determine that
the advances were loans, and that White Mountain was indebted to him.83 Congelton
unsuccessfully moved to compel arbitration, and the trial court affirmed.84
On appeal, the Fourth Circuit affirmed the lower courts, noting that federal policy applies
with "special force" to international arbitration agreements.85 At first, the Court hinted that
McMahon's first prong might be satisfied, stating "the statutory text giving bankruptcy courts
core-issue jurisdiction reveals a congressional intent to choose those courts in exclusive
preference to all other adjudicative bodies, including boards of arbitration to decide core
claims."86 However, the Court ultimately decided to affirm the lower courts based under
McMahon's third approach.87 The Court found there to be an inherent conflict, because
bankruptcy is meant to modify the rights of debtors and creditors in a centralized efficient
manner.88 And allowing a core issue to be decided in arbitration is inconsistent with the policy
of centralization, because that "would make debtor-creditor rights 'contingent upon an arbitrator's
ruling.'"89 Reasoning that because this was a Chapter 11 case, the Court held that it would be
81
Id. at 167.
In re White Mountain Mining Co., L.L.C., 403 F.3d at 166-67.
83
Id.
84
Id. at 167-68.
85
Id. at 168.
86
In re White Mountain Mining Co., L.L.C., 403 F.3d at 169.
87
Id.
88
Id. at 170.
89
Id. at 169-70 (quoting Jurisdiction in Bankruptcy Proceedings: A Test Case for Implied Repeal of the Federal
Arbitration Act, 117 HARV. L. REV. 2296, 2307 (2004)).
82
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 50 difficult to a obtain new funding and would undermine confidence of creditors and other parties
trying to do business with a rehabilitating debtor while there was ongoing litigation.90
The Ninth Circuit recently addressed the issue in two cases. In Continental Insurance.
Co. v. Thorpe Insulation Co. (In re Thorpe Insulation Co.), the Court dealt with complex
litigation involving an asbestos distributor and one of its insurers, Continental Insurance.91 Four
years prior to filing bankruptcy, the parties settled a coverage dispute.92 The settlement
agreement contained an arbitration clause and two warranties prohibiting the parties from
assigning any claims or assisting any others in bringing a cause of action.93 The debtor began
establishing an 11 U.S.C.S. § 524(g) trust with settling insurers and filed Chapter 11
bankruptcy.94 The reorganization plan allowed asbestos claimants to sue non-settling insurers
directly.95 Continental filed a claim for breach of contract and moved to compel arbitration.96
The case made its way to the Ninth Circuit, and the Court affirmed the lower court’s
refusal to enforce the arbitration clause.97 Although Continental's claim was framed as a state law
breach of contract, the underlying issue was whether the 11 U.S.C.S. § 524(g) trust and plan of
reorganization breached the earlier settlement agreement.98 Congressional intent showed that
Bankruptcy Courts were to "oversee all aspects of a § 524(g) reorganization, only the bankruptcy
court should decide whether the debtor's conduct in the bankruptcy gives rise to a claim for
90
In re White Mountain Mining Co., L.L.C., 403 F.3d at 170.
Continental Insurance. Co. v. Thorpe Insulation Co. (In re Thorpe Insulation Co.), 671 F.3d 1011 (9th Cir. 2012).
92
In re Thorpe Insulation Co., 671 F.3d at 1014.
93
Id. at 1014-15.
94
Id. at 1015-16.
95
Id. at 1016.
96
In re Thorpe Insulation Co., 671 F.3d at 1016.
97
See Id.
98
Id. at 1021; see also Brennan & Parachini, supra note 44.
91
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 51 breach of contract."99 Emphasizing that centralization is even more important in the asbestos
context, the Court found an inherent conflict would exist with the purposes and policies of the
Bankruptcy Code.100 Allowing arbitration would make the Bankruptcy Court lose control over
the timing of the reorganization and affect the rights of asbestos claimant creditors.101
In addition, the Ninth Circuit applied the same reasoning in a Chapter 7 bankruptcy.102 In
the case of In re Eber, the plaintiffs commenced an arbitration proceeding for breach of contract,
fraud, and breach of fiduciary duty.103 Eber responded by filing bankruptcy staying the
arbitration.104 The plaintiffs sought relief from the automatic stay arguing they had a contractual
right to have the issues of liability and damages arbitrated, leaving the issue of dischargeability
for the bankruptcy court.105 The bankruptcy court denied plaintiffs' motion for relief, and the
district court affirmed.106 Plaintiffs' claims were discharged, and the bankruptcy court entered
judgment.107 Reviewing the case for clear error, the Ninth Circuit affirmed, relying on Thorpe.108
Noting that dischargeability was the real issue the plaintiffs' were trying to arbitrate, "allowing an
arbitrator to decide issues that are so closely intertwined with dischargeability [that] 'would
conflict with the underlying purposes of the Bankruptcy Code.'"109
99
In re Thorpe Insulation Co., 671 F.3d at 1022.
Id. at 1023-24.
101
Id. at 1023-24.
102
In re Eber, 687 F.3d 1123 (9th Cir. 2012).
103
Id. at 1125.
104
Id. at 1125-26.
105
Id. at 1125-26.
106
In re Eber, 687 F.3d at 1125-26.
107
Id. at 1126.
108
Id. at 1126.
109
Id. at 1130-31 (quoting In re Thorpe Insulation Co., 671 F.3d at 1021).
100
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 52 The Eleventh Circuit addressed the issue as well in Whiting-Turner Contracting Co. v.
Electric Machinery Enterprises, Inc. (In re Elec. Mach. Enters.).110 This case involved a
subcontractor that provided electrical work for a general contractor.111 Due to scheduling delays,
the subcontractor incurred additional costs because the work had to be accelerated.112 The
subcontractor and general contractor entered into a tolling agreement, while the general
contractor pursued claims against the developer for $21 million, $5 million of which was the
subcontractor's pass-through claim.113 The subcontractor filed Chapter 11 bankruptcy, and later
the developer and general contractor settled for $9.6 million.114 The general contractor refused to
pay the subcontractor because he had already paid $1.8 million.115 The subcontractor filed an
adversary proceeding against the general contractor for $7 million claiming it was "turnover"
property of the estate.116 The subcontractor filed a motion for summary judgment, and the
general contractor filed a motion to compel arbitration.117 The Bankruptcy Court determined it
was not a "turnover" action, but a constructive trust situation, and the res of the trust was within
the courts in rem jurisdiction, and concluded it was a "core" proceeding.118 The motion to
compel arbitration was denied, and the trial court affirmed.119
On appeal, the Eleventh Circuit reversed the lower courts.120 First, the Court held that the
claim was non-core.121 The Court defined core claims as rights created by federal bankruptcy law
110
See Whiting-Turner, supra note 49.
In re Elec. Mach. Enters., 479 F.3d at 793-94.
112
Id. at 794.
113
Id.
114
Id.
115
In re Elec. Mach. Enters., 479 F.3d at 794.
116
Id.
117
Id. at 795.
118
Id.
119
In re Elec. Mach. Enters., 479 F.3d at 795.
120
See id.
111
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 53 or that would only arise in bankruptcy.122 It defined non-core claims as substantive rights that are
not created by bankruptcy law, and that could exist outside of bankruptcy.123 Unlike the cases
that the subcontractor relied on, the subcontractor did not possess the money, but rather the
money was held by a third party who was not a creditor of the estate.124 Reasoning it was a noncore claim, the court stated, "EME could have brought this claim against Whiting-Turner
irrespective of whether EME had filed for bankruptcy. EME's claim against Whiting-Turner does
not involve the traditional rights of creditors who make claims against the bankruptcy debtor's
estate."125 The Court concluded that the claim was non-core and subject to arbitration.126 But
then the Court went a step further and held that even if it were core, the claim was still subject to
arbitration because the bankruptcy court must make a sufficient finding that there would be an
inherent conflict between the Code and arbitration.127
In 2011, the Supreme Court decided Stern v. Marshall.128 It held that Congress could not
grant Article III authority to Article I courts, which created Stern Claims.129 Stern Claims are
those that are core as a statutory matter, however, as a constitutional matter this must be decided
by an Article III Court.130 Since Stern, several of the lower courts and the Fourth Circuit have
had the opportunity to address the enforceability of arbitration clauses in bankruptcy
proceedings.
121
Id. at 797-98.
In re Elec. Mach. Enters., 479 F.3d at 797 (quoting Cont'l Nat'l Bank v. Sanchez (In re Toledo), 170 F.3d 1340,
1348 (11th Cir. 1999)).
123
In re Elec. Mach. Enters., 479 F.3d at 797 (quoting In re Toledo, 170 F.3d at 1348).
124
In re Elec. Mach. Enters., 479 F.3d at 797-98 (comparing Canal Corp. v. Finnman (In re Johnson), 960 F.2d 396
(4th Cir. 1992), and Salomon v. Kaiser (In re Kaiser), 722 F.2d 2574 (2d Cir. 1983)).
125
In re Elec. Mach. Enters., 479 F.3d at 798.
126
Id. at 798.
127
Id. at 798-99.
128
Stern, 131 S. Ct. 2594.
129
See 131 S. Ct. 2549.
130
See id.
122
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 54 The Court in TP, INC., v. Bank of America, N.A. (In Re TP, INC.), set out a clear standard
to determine whether an arbitration clause survives in bankruptcy after Stern.131 This case dealt
with a Chapter 7 bankruptcy proceeding where the debtor initiated an adversary proceeding
against the lender for twelve causes of action.132 Before reaching the Stern issue, the court set up
the standard, "if the matter is non-core, it is generally referred to arbitration consistent with
policy in favor of arbitration; however if a core proceeding is at issue, the policy in favor of
centralized determination in the bankruptcy court generally prevails."133 Then the Court
concluded that the claims were statutorily core under 28 U.S.C. § 157(b)(2)(c) because they
functioned as counterclaims against a party making a claim against the estate, even though an
adversary proceeding initiated them.134 The Court reasoned that state law core counterclaims are
permissible with Stern as long as "the resolution of the counterclaim is necessary to the
determination of whether creditor's claim should be allowed in a bankruptcy case."135
Because of Stern, the claim also had to be constitutionally core.136 In order to be
constitutionally core, the issue must stem from the bankruptcy itself or be resolved in the claims
allowances process, only one prong must be satisfied to be constitutionally core.137 Nine claims
failed the constitutionally core test.138 Three claims were found to be constitutionally core under
the second prong.139 Among the three claims were causes of action for fraud in the inducement,
131
TP, INC., v. Bank of America, N.A. (In re TP, INC.), 479 B.R. 373 (Bankr. E.D.N.C. 2012).
The twelve causes of action were: (1) constructive fraud, (2) fraud, (3) fraud in the inducement, (4) recession, (5)
breach of fiduciary duty, (6) negligence, (7) negligent misrepresentation, (8) tortious interference with contractual
relationships and business opportunities, (9) breach of contract/implied covenant of good faith and fair dealing, (10)
unfair and deceptive trade practices, (11) alter ego/insider liability, and (12) equitable subordination/recharacterization. In re TP, 479 B.R. at 378.
133
See In re TP, 479 B.R. at 382.
134
Id. at 383.
135
Id. at 384 (citing Spanish Palms Mktg., LLC v. Kingston (In re Kingston), 2012 WL 632398, at *2 (Bankr. D.
Idaho 2012)).
136
In re TP, 479 B.R. at 384.
137
Id. at 384.
138
Id. at 384-87.
139
Id. at 384-87.
132
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 55 recession of the contract, and equitable subordination/re-characterization.140 They all directly
attacked the validity and enforceability of the loan documents, or attacked the amount set forth in
the proof of claim.141 When examining the second prong, the Court found that "courts generally
look to see if a 'common nucleus of law and fact' exists to inextricably intertwine the claims and
counterclaims."142 The Court also stated:
[A] counterclaim by the estate based in state law must seek to directly reduce or
recoup the amount claimed in order to be resolved in ruling on the proof of claim.
Applying this type of test, a counterclaim by the bankruptcy estate that seeks
affirmative monetary relief to augment the estate but does not directly modify the
amount claimed would not qualify as a claim to be resolved in ruling on the proof
of claim.143
A Chapter 7 proceeding out of New York refused to compel arbitration. In this case,
Koper v. Trinity Christian Ctr. of Santa Ana, Inc. (In re Koper), prior to the bankruptcy filing,
the plaintiff commenced multiple proceedings against the debtor in California and the matter was
already referred to arbitration.144 The plaintiff was the debtor’s former employer, and alleged the
debtor obtained funds under false pretenses, embezzlement, defalcation while acting as a
fiduciary, and willful and malicious injury to the plaintiff and its property.145 This Court used a
four-prong test.146 Before assessing whether or not the court had discretion, the Court stated, "the
inquiry does not end simply because the dispute involves a core proceeding, but rather the
140
In re TP, 479 B.R. at 385-87.
Id. at 385-87.
142
Id. at 384 (quoting McElwee v. Scarff Bros., Inc. (In re McElwee), 469 B.R. 566, 567-77 (Bankr. M.D. Pa.
2012)).
143
In re TP, 479 B.R. at 385.
144
Koper v. Trinity Christian Ctr. of Santa Ana, Inc. (In re Koper), 516 B.R. 707 (Bankr. E.D.N.Y. 2014)
145
Plaintiffs argued that the debts were non-dischargeable under 11 U.S.C. §§ 523(a)(2), (4), (6). In re Koper, 516
B.R. at 713.
146
"[F]irst, it must determine whether the parties agreed to arbitrate; second it must determine the scope of the
agreement; third, if federal statutory claims are asserted, it must consider whether Congress intended those claims to
be non-arbitrable; and fourth, if the court concludes that some, but not all, of the claims in the case are arbitrable, it
must then decide whether to stay the balance of the proceedings pending arbitration." In re Koper, 516 B.R. at 716
(quoting Bethlehem Steel Corp. v. Moran Towing Corp. (In re Bethlehem Steel Corp.), 390 B.R. 784, 789 (Bankr.
S.D.N.Y. 2008)).
141
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 56 conflict must impinge upon a 'substantially core' function of the bankruptcy process."147 Then the
Court recognized the similarity to In re Eber, in that the plaintiffs were attempting to separate the
issues of liability, damages, and dischargeability.148 The Court found the issue of
dischargeability was substantially core, stating:
[W]here there is no prepetition arbitration award in place, allowing an arbitrator
to decide issues of liability and amount of damages would potentially subsume the
dischargeability issue and supplant the bankruptcy court's prerogative to make the
determination as to that issue and the issue of the debtor's entitlement to a fresh
start.149
Exercising discretion, the Court concluded to leave matters in the bankruptcy court, because it
would defeat the purpose of centralization and be a waste of judicial resources, if the debtor were
forced to concurrently defend similar claims in California and New York, and noted that the
potential for collateral estoppel should be considered.150
A similar case, In Re Woods, involved a former employee that initiated litigation after the
employment ended.151 Responding to the litigation, the employer commenced an arbitration
proceeding with the Chicago Board of Trade.152 And later, the employer filed Chapter 11, which
stayed the arbitration.153 The employee filed a claim, and sought relief from the automatic stay to
continue the arbitration proceedings.154 The employee argued that due to Stern, the bankruptcy
court lacked authority to hear and determine dispute.155 However, the Court had statutory and
constitutional authority to hear the issue, reasoning that unlike Stern, this was not a counterclaim
147
In re Koper, 516 B.R. at 718 (quoting In re Hostess Brands, Inc., No. 12-22052-rdd, 2013 WL 82914, *3, 2013
Bankr.LEXIS 79, *6-7 (Bankr. S.D.N.Y. Jan. 7, 2013)).
148
In re Koper, 516 B.R. at 719-20.
149
Id. at 721.
150
Id. at 722-24.
151
In re Woods, 517 B.R. 106 (Bankr. N.D. Ill. 2014).
152
Id. at 108-110.
153
Id. at 110.
154
Id. at 108.
155
In re Woods, 517 B.R. at 110.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 57 made by the debtor, but a claim against the estate.156 And when a claim against the estate is filed,
claimants subject themselves to the bankruptcy court's equitable jurisdiction.157 Framing the
issue as a "routine question of whether the court should lift stay,"158 the court ultimately held that
the "judicial economy and efficient administration of the estate are better suited by having the
claim heard in this forum."159
In re Ames dealt with a Chapter 13 bankruptcy where the debtor brought claims against
Zimmerman, his former attorney, for breach of fiduciary duty, fraud, deceit, misrepresentation,
unjust enrichment, and for an accounting, alleging that Zimmerman paid himself with $7,000
that was to be used to settle with creditors.160 The litigation agreement contained an arbitration
provision, and also entitled Zimmerman to deduct funds for various fees for his services.161 The
debtor claimed that Zimmerman used all of the funds to pay himself, and none was used to settle
with creditors.162 The attorney argued the complaint should be dismissed, and in the alternative
to compel arbitration.163
This Court used a two part test, "(i) whether the parties agreed to arbitrate the dispute and
(ii) whether arbitration inherently conflicts with the Bankruptcy Code."164 At issue was the
156
Id. at 113-16.
“As Judge Wedoff made clear, ‘a creditor who files a claim against an estate in bankruptcy not only submits that
claim to the equitable jurisdiction of the bankruptcy court, but also brings within the bankruptcy jurisdiction
counterclaims of the estate that would otherwise require a jury trial.’” Id. at 115 (quoting In re UAL Corporation,
310 B.R. 373, 378 (Bankr. N.D. Ill. 2004)).
158
The Court analyzed 11 U.S.C. § 362(d). In re Woods, 517 B.R. at 110, 116.
159
In re Woods, 517 B.R. at 119.
160
Originally the case was filed as a Chapter 7 but later converted to Chapter 13. Ames v. Zimmerman (In re Ames),
Adv. No. 14-04010, 2015 WL 790832, at *1 (Bankr. D. Mass. Feb. 24, 2015).
161
In re Ames, 2015 WL 790832, at *1.
162
Id.
163
Zimmerman argued the complaint should be dismissed for lack of personal jurisdiction, improper venue, failure
to state a claim upon which relief can be granted, and that the statute of limitations has ran. See In re Ames, 2015
WL 790832, at *2.
164
In re Ames, 2015 WL 790832, at *2, 3 (citing Sternklar v. Heritage Auction Galleries, Inc. (In re The Rarities
Grp., Inc.), 434 B.R. 1, 8 (D. Mass. 2010)). This case as well as Sternklar used reasoning derived from In re
National Gypsum Co., 118 F.3d 1056.
157
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 58 second prong, and the Court reasoned that no claims or rights from the Code were implicated.165
Litigation stemmed from the parties pre-petition transactions, the $7,000 paid under the legal
services agreement.166 Additionaly, the debtor failed to demonstrate an inherent conflict between
the Code and arbitration, because he failed to identify any claims or rights established by the
Code.167 He merely asserted "vague concerns about an unidentified forum, unfamiliar rules, and
potential costs and delays if the parties are compelled to arbitrate their dispute."168
Most recently is Moses v. CashCall, Inc., a Chapter 13 case from the Fourth Circuit.169
Moses took out a loan for $1000, where she agreed to repay $1,500 at a 149% interest rate, "for
an effective interest rate of 233.10% per annum."170 The loan agreement contained a provision
that provided any dispute would be resolved by "arbitration conducted by the Cheyenne River
Sioux Tribal Nation by an authorized representative," and that Cheyenne laws would govern.171
Three months after signing the loan agreement Moses filed for bankruptcy.172 CashCall filed a
proof of claim, and Moses commenced an adversary proceeding objecting to the claim, seeking
to have the debt declared void because the lender was unlicensed in North Carolina and due to
usury laws, and sought damages for violations of the state debt collection statutes.173
CashCall filed a motion to withdraw the proof of claim with prejudice and dismiss the
adversary proceeding without prejudice, or in the alternative that the claims be sent to
165
"But there is no such conflict with the Code's purposes 'when the dispute at issue does not implicate core aspects
of the adjustment of debtor/creditor relations and instead ... remains rooted in the pre-bankruptcy past.'" In re Ames,
2015 WL 790832, at *3 (quoting Belton v. GE Capital Consumer Lending, Inc. (In re Belton), 12-23037, 2014 WL
5819586, *5, 2014 Bankr.LEXIS 4679, *14 (Bankr. S.D.N.Y. Nov. 10, 2014)).
166
In re Ames, 2015 WL 790832, at *3.
167
Id.
168
Id.
169
Moses v. CashCall, Inc., No.14-1195, 2015 WL 1137242 (4th Cir. Mar. 16, 2015).
170
Moses, 2015 WL 1137242, at *1.
171
Moses, 2015 WL 1137242, at *2.
172
Moses, 2015 WL 1137242, at *3.
173
Id.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 59 arbitration.174 The lower courts found the first claim to be a constitutionally core claim, but the
second claim failed the constitutionally core test.175 However, the lower courts reasoned that
because the second claim depended on the first claim and if the first claim were to fail so would
the second, the claims were inextricably intertwined and should be left in the bankruptcy court to
make proposed findings.176
A three judge panel for the Fourth Circuit affirmed and reversed in part. Judge Niemeyer
and Judge Gregory concluded there would be an inherent conflict with sending Moses's first
claim to arbitration.177 They reasoned that if the tribunal were to hold CashCall's loan valid it
could then petition the Court as an unsecured creditor.178 Although unsecured creditors were not
anticipated to receive any funds under the confirmed reorganization plan, it did not mean they
never would.179 "Under these circumstances, ordering arbitration of a dispute that directly
pertains to Moses' plan for reorganization would 'substantially interfere with her efforts to
reorganize.'"180 Judge Davis dissented as to the first issue.181
As to the second claim, Judge Gregory and Judge Davis concurred sending the non-core
claim to arbitration. Judge Gregory found that there would be no inherent conflict because the
success or failure of the non-core claim was ancillary to the estate, and would not conflict with
174
Moses, 2015 WL 1137242, at *3, 4.
Id.
176
Id. Prior to the adversary proceeding, the reorganization plan was approved without objection. The District Court
denied leave to appeal the interlocutory order denying CashCall's motion to withdraw its proof of claim, but granted
leave to hear the issue of arbitration.
177
Moses, 2015 WL 1137242, at *5-8.
178
Moses, 2015 WL 1137242, at *7.
179
Id.
180
Id. (quoting In re White Mountain Mining Co., L.L.C., 403 F.3d at 170).
181
Moses, 2015 WL 1137242, at *22-25. Judge Davis concluded that the Bankruptcy Court improperly denied
CashCall's motion to withdraw its proof of claim and it was reviewable based on pendent appellate jurisdiction.
CashCall made representations to the Court it had abandoned its proof of claim and was no longer seeking an award.
Id. Judge Davis reasoned that Moses was released from the loan obligation, thus making the core claim moot and no
reason to decide whether it should be sent to arbitration.
175
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 60 the "purpose of facilitating an efficient reorganization."182 The only affect arbitration would have
on the reorganization would be the estate receiving additional funds.183 He additionally found
that the claims were not inextricably intertwined, because the only thing in common was the
underlying loan obligation being void.184 Judge Davis agreed that the non-core claim was only
related in that, if successful, the estate would recover additional funds.185 Judge Niemeyer
dissented as to the second issue.186
IV:
Solutions, Proposals, and Concluding Remarks.
It has been said that the standards established are so "vague and malleable that they give
courts [a] license to do almost anything they want."187 For instance, some commentators stated
that in In re Thorpe Insulation Co., the Ninth Circuit appeared to apply the test used by the Third
and Fifth Circuits, while another says the Ninth Circuit applied an even broader standard,
developing a third string of analysis to the split.188 The Third Circuit has a strong policy favoring
arbitration, whereas the Fourth Circuit generally keeps core matters within the bankruptcy
court.189 Further, this provides parties with an incentive to go forum shopping.190 In any event,
182
Moses, 2015 WL 1137242, at *17.
Id. at *15.
184
Id. at *19-20.
185
Moses, 2015 WL 1137242, at *27.
186
Judge Niemeyer concluded that sending the non-core claim to an "illusory arbitration proceeding would
inherently conflict with the purposes of the Bankruptcy Code. . . ." Id. at *8. He noted that other courts reviewing
similar arbitration agreements involving the same lenders found it to be a sham, the Cheyenne River Sioux tribe did
not have any authorized arbitrators or consumer dispute rules. Id. at *9. And that litigation on the arbitration
procedure was likely to occur. Id. at *9. He also noted that having identical issues decided by two tribunals was
inefficient, a potential for collateral estoppel or having different results, and harm to the creditors by reducing the
amount of Moses’s income. Id. at *8-12.
183
187
See Kirgis, supra note 9, at 520.
Compare Brennan & Parachini, supra note 44, with WILLIAM L. NORTON JR. & WILLIAM L. NORTON III, 8
NORTON BANKRUPTCY LAW AND PRACTICE 3d § 169:4 (2015).
189
Compare Kang, supra note 1, with In re White Mountain Mining Co., 403 F.3d 164, and In re TP, 479 B.R. 373.
190
See Timothy Duggan, Bankruptcy Law: Shopping for a Chapter 11 Forum, N.J.L.J., Feb. 4, 2013, available at
http://www.stark-stark.com/docs/dug_2.4.13_njlj.pdf.
188
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 61 litigating over the enforceability of arbitration is expensive, inefficient, and defeats the purpose
of arbitration.191
Due to the confusion, some legal scholars proposed solutions to solve the problem. Paul
F. Kirgis argues that the real problem is the use of the standard of McMahon as a starting point,
which is initially a "flawed foundation."192 What is often overlooked is that McMahon was
facing precedent that was almost directly on point, the Supreme Court's Wilko v. Swan.193 By the
time McMahon came around the arbitration landscape had dramatically shifted.194 His solution
starts with viewing arbitration in a different context.195 The Federal Arbitration Act was intended
to apply mainly to "commercial agreements between roughly equal parties."196 Rather than
viewing arbitration as a competing quasi-judicial forum, it should be viewed as a species of
contract.197 "[U]sing a neutral person as a designated 'contract reader.' The arbitrator supplies the
'terms' that the parties would have agreed upon if they had foreseen the dispute and planned for it
in the contract. The award is the equivalent of a contract term."198
Kirgis's proposal looks past the core/non-core distinction, and holds that matters should
generally be referred to arbitration, unless arbitration would deprive a party of its statutory
bankruptcy rights.199 However, the trustee or DIP would be afforded more deference when
challenging arbitration on undue delay or expenses grounds.200 As a result, arbitration
proceedings would become expedited and efficient.201 After arbitration, the award is treated as a
191
See Culhane, supra note 46, at 494-95.
See Kirgis, supra note 9, at 517, 523.
See Kirgis, supra note 9, at 518, 519, 523 (comparing Wilko v. Swan, 346 U.S. 427 (1953)).
194
See Kirgis, supra note 9, at 518, 519 (comparing Wilko, 346 U.S. 427).
195
See Kirgis, supra note 9, at 543.
196
See Kirgis, supra note 9, at 512.
197
See Kirgis, supra note 9, at 543.
198
Id.
199
See Kirgis, supra note 9, at 541.
200
See Kirgis, supra note 9, at 523-30.
201
See Kirgis, supra note 9, at 530.
192
193
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 62 contract term.202 The second key to this approach is affording the bankruptcy court a more robust
degree of reviewability.203 His proposal would allow the bankruptcy court to conduct a public
policy review of awards, which would guard against unfairness.204 The question he would ask is:
If the parties, pre-bankruptcy, had agreed to a contract term obligating them to do
exactly what the award requires, would that contract term be enforceable? If it
would, then the FAA requires enforcement. If it would not, then the Bankruptcy
Court should vacate or remand the award as violative of public policy.205
The estate would then pursue awards in the debtor's favor, and awards that create an obligation
on the part of the debtor would be paid according to the statutory scheme. 206
Marianne B. Culhane criticizes that approach in favor of Alan Resnick's solution.207 One
of Culhane's major concerns is the issue of consent to arbitration. With debtor-derivative claims,
the consent to pre-petition arbitration agreements is imputed on the trustee.208 But actions
derived from the Bankruptcy Code are for the benefit of the creditors of the estate, and "consent
cannot fairly be imputed in such cases."209 However, Culhane notes that consent should not be
imputed even in debtor-derivative claims.210 A creditor who is not a party to arbitration may have
his recovery determined based on the arbitrator's valuation of the award.211 The result will
become a "creditor-verse-creditor" contest.212 Non-party creditors have the right to intervene in
202
See Kirgis, supra note 9, at 535.
See Kirgis, supra note 9, at 504.
204
See Kirgis, supra note 9, at 534-36.
205
See Kirgis, supra note 9, at 539.
206
See Kirgis, supra note 9, at 543.
207
See generally Culhane, supra note 46.
208
See Culhane, supra note 46, at 496.
209
See Culhane, supra note 46, at 497.
210
Id.
211
Id. ("Because the insolvent estate is finite and distributed pro rata to creditors, the arbitrator's valuation of one
creditor's claim affects the recovery of other creditors as well. This effect is magnified if the arbitrated claim is
entitled to priority . . . .").
212
See Culhane, supra note 46, at 497.
203
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 63 bankruptcy matters, but in arbitration, they will not have the same right to participate and be
heard.213
Because Kirgis's approach lacks protection for non-party creditors, Culhane advocates for
Alan Resnick's proposal, which involves "bright-line rules, few exceptions, and limitations on
appeals."214 This approach makes arbitration clauses unenforceable in core matters, regardless of
whether they are debtor-derivative claims or arise from the Code.215 And non-core claims would
be subject to arbitration, with few exceptions.216 After a decision to enforce or deny arbitration,
only one appeal would be allowed, and it would be on an abuse of discretion standard.217
Although many say there’s a confusing split, perhaps alternatively, as Kerry A. Brennan
and Alexander Parachini point out, the split may not be as deep as it has been made out to be.218
All of the circuits that have addressed the issue agree that courts may not refuse to
enforce arbitration clauses in non-core matters. Core matters, which are set out by
statute, are matters that invoke substantive rights provided by the Bankruptcy
Code or only exist in the context of a bankruptcy case—they “arise under” the
Bankruptcy Code. Non-core matters are “related to” a bankruptcy case, and may
affect or be affected by the bankruptcy case. [T]he circuits on both sides of the
split agree that courts may refuse to enforce arbitration clauses where arbitration
would conflict with the policies underlying the Bankruptcy Code. . . . The circuits
differ over the enforceability of arbitration clauses in core matters where the
rights to be vindicated arise solely out of non-bankruptcy law.219
After Stern, there are three types of claims; non-core, Stern Claims, and constitutionally
core claims. Executive Benefits held that Stern Claims should be treated as non-core claims due
to the Acts severability provision.220 Because bankruptcy courts generally do not have the
213
See Culhane, supra note 46, at 498.
See Culhane, supra note 46, at 498-99 (citing Alan N. Resnick, The Enforceability of Arbitration Clauses in
Bankruptcy, 15 AM. BANKR. INST. L. REV. 183 (2007)).
215
See Culhane, supra note 46, at 498-99.
216
See Culhane, supra note 46, at 499.
217
Id.
218
See Brennan & Parachini, supra note 44.
219
Id. (internal citations omitted).
220
See Executive Benefits, 134 S. Ct. 2165.
214
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 64 discretion to deny arbitration in non-core matters, some commentators have pointed out it would
make sense to treat Stern Claims the same way.221 This would leave only constitutionally core
claims for McMahon's inherent conflict analysis.222
I personally agree with Paul F. Kirgis that one of the main problems is that McMahon is
used as the starting point. However, rather than sending the majority of claims to arbitration, I
am more in favor of the approach used in In Re TP. 223 The clear rules set out seem to be a more
stable standard and would ease most of the confusion leading to consistent results. As to
rectifying Stern, the simplest solution would be to pass legislation giving bankruptcy judges life
tenure and guaranteed salary, making them Article III judges. If the number of bankruptcy judges
remains constant, there would not necessarily be that substantial a cost increase. In addition, they
would have the ability to enter final judgment on all claims, core and non-core. However, such
action is extremely unlikely given the current Congress.
221
222
223
William L. Norton Jr. & William L. Norton III, 8 NORTON BANKRUPTCY LAW AND PRACTICE 3d § 169:4 (2015).
Id.
479 B.R. 373.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 65 Prosecutorial Power in Plea Bargaining: Supplementing Mediation with Plea Negotiation
Tara Bing
I.
INTRODUCTION
Within America’s justice system, the process of plea bargaining exist’s in the shadows
because it “fails to internalize the laws that purport to govern it [, and] the shadow is cast
by…the law that the prosecutors make” and not by the law that is in code books or case reports.1
However, plea bargaining is imbedded in our justice system in a way that makes it an “informal,
administrative, inquisitorial process of adjudication” within which the prosecutor seems to be the
only judge that the defendants will encounter throughout their whole case.2 In essence, during
this process, the prosecutor inevitably becomes the proverbial judge, juror, and executioner all
wrapped into one.3 Although the plea bargaining process is part of the criminal justice system, or
an adjunct of it, some flaws exist within this phase to the extent that there is a shifting of power
to the prosecutor’s side.4 As a result of this, it is reasonable to suggest that supplementing plea
negotiations with mediation is one alternative to the problem.5
II.
OVERVIEW OF PLEA BARGAINING
Plea bargains are an agreement, in a criminal case, between the prosecutor and the defendant.
Generally, prosecutors and defendants enter into a plea bargain to improve the positions of the
parties so that the defendant will receive a fair deal.6 The Supreme Court recognized that the
1
See William Stuntz, Plea Bargaining and Criminal Law’s Disappearing Shadow, 117 HARV. L. REV. 2548, 2568
(2004).
2
Wesley M. Oliver, Toward a Common Law of Plea Bargaining, 102 KY. L.J. 1, 2 (2014).
3
Brandon J. Lester, System Failure: the case for Supplanting Negotiation with Mediation in Plea Bargaining, 20
OHIO ST. J ON DISP. RESOL. 563, 573 (2005).
4
Id. at 3.
5
See, supra note 2.
6
See Talia Fisher, Criminal Law: The Boundaries of Plea Bargaining: Negotiating the Standard of Proof, 97 J.
CRIM. L. & CRIMINOLOGY 943, 967 (2007).
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 66 defendant has a right to “effective assistance” in the plea bargaining stage, which is the phase of
the trial that determines the outcome for the majority of criminal defendants.7 In theory, plea
negotiations provide an alternative means of resolving cases for the “overburdened criminal
justice system” where the defendant is bound by the negotiating skills of the defense counsel,
and the promises of the prosecutor to engage in “good faith bargaining.”8
There are advantages in plea bargaining for all parties involved, including the prosecutor, the
defendant, and the judge. From the defendant’s perspective, plea bargains allow the defendant to
reduce the overall potential cost, which involves both the “criminal punishment and its
accompanying trial costs,” one can face for allegedly committing a crime.9 By engaging in this
type of negotiation, the defendant can gain a benefit by acquiring a “discount” in the sentencing
process whereby the defendant will receive a conviction for a lighter sentence.10
However, from the prosecution’s viewpoint, plea bargains help the prosecutor decrease court
cost by negotiating a sentence without enduring the hassle of a trial. In essence, the prosecutor’s
goal during negotiations is to enter into a plea bargain wherein the “overall expected price of the
offense” paid by the defendant outweighs or exceeds the “expected price from alternative
defendants through equal investment of resources.11 Thus, the main objective for the prosecution
is to obtain the “optimum level” of punishment at the least cost in each case by maximizing the
deterrence obtainable through tailoring each plea offer to the anticipated cost of trial, the
possibility of success, and the expected trial sentence.12 Additionally, criminal cases that are
resolved as a result of plea bargains allow judges to make room on their docket for other cases.
7
Oliver, supra note 2 at 3
Lester, supra note 3 564.
9
Fisher, supra note 6 at 953.
10
Id.
11
Id. at 954.
12
Stephen J. Schulhofer, Plea Bargaining as Disaster. 101 YALE L.J. 1979, 1980 (1992).
8
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 67 Although there are benefits for plea negotiations, it appears that the flaws within this process
outweigh the advantages to the extent that neither party gets what they want, and the prosecutor
holds all the power.
III.
FLAWS IN PLEA BARGAINING
In theory, plea bargaining is an alternative solution where the guilty defendant would receive
a reasonable punishment for the crimes committed rather than trying their chances at trial.13 This
systematic structure of unregulated rules would appear to be desirable for defendants who want
to avoid the chance of a wrongful conviction to a serious crime by gambling on the system;
however, this is not the case. 14 There are many problems that exist in the plea bargaining
process, such as innocent defendants pleading guilty, the defense counsel’s ineffective
negotiating skills, and the defendant receiving severe sentencing.15 However, the dominance of
prosecutorial power within the negotiating phase is the main issue that could lead to a myriad of
problems. 16
A balance of power between the prosecution and the defense counsel does not exist within
plea bargaining. 17Although, the power may shift to the defense’s side at trial when the
prosecutor has the burden to prove that the defendant is guilty beyond a reasonable doubt, this
shift of power may not occur when the defendant is limited during the negotiation phase as a
result of accepting a plea offer. In essence, for certain crimes, plea bargains take place in the
“shadow of the prosecutor’s preference” where the prosecutor has the option to go for the highest
13
Lester, supra note 8.
Id.
15
Id. at 567; see also Oliver, supra note 2.
16
Lester, supra note 8, at 567.
17
Id. at 572.
14
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 68 possible sentence for the defendants they charge. 18 In such situations, the balance of power does
not shift to the defense’s side, and the prosecutor holds all the cards in determining the outcome
of the defendant’s case. 19 For all intents and purposes, the prosecutor has a preponderant
influence over the plea bargaining process:
He determines which charges will be filed against a particular defendant, what
deals will be offered, how much the deals can be altered, and whether or not
defendants who do not plead will be prosecuted to the fullest extent of the law.
Such unfettered discretion undermines fairness, regardless of whether or not
prosecutors abuse this privilege. 20
Additionally, the extent of excessive prosecutorial power during plea bargaining is quite
clear when the prosecutor’s decisions are not subject to review and may avoid scrutiny from the
public, which is not the case for the rulings of judges. 21 As a result, the process within plea
bargaining is not systematic, it can vary on a case by case basis to the extent that the defense
counsel does not know how much weight a prosecutor will give to certain offense, which often
makes defense counsels “ill equipped for whatever idiosyncratic process” the prosecutor has
developed for considering the defendant’s perspective.22 Consequently, “plea bargains are not a
single phenomenon,” since they can vary widely from crime to crime and from jurisdiction to
jurisdiction, thus enhancing the prosecutor’s ability to make credible treats on severe sentencing
possible. 23 It is clear that the prosecutor has the absolute power to control proposals for plea
bargains, as well as the benefits and consequences for accepting or rejecting offers. 24 In essence,
18
Stuntz, supra note 1, 2549 & 2556.
Oliver, supra note 2, at 3.
Lester, supra note 8, at 572.
21
Id. at 2.
22
Id.
23
Stuntz, supra note 1, at 2558.
24
Lester, supra note 8, 572.
19
20
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 69 negotiations during plea bargaining are “fruitless when one party holds all the bargaining
power,” thus making it impossible for agreements to truly be reached jointly.25
The prosecutor has extraordinary discretion in plea bargaining as it pertains to deciding
which charges and pleas to offer.26 Instead of the offer being tailored to whether the defendant is
guilty or innocent, it usually depends on the likelihood of a conviction based on the evidence
available to the prosecution and the defense.27 During plea bargaining, the prosecutor seeks to
induce guilty pleas by using an “open file policy” where the prosecutor would let the defendants
see what damning evidence will be introduced at trial. 28
A defense counsel’s possible ineffective negotiation skills can also help explain of what
contributes to the overload of prosecutorial power during the plea bargaining process. 29 In
criminal law, defense lawyers are praised for their performance in a trial and not for their skills
in negotiating cases. 30 As a result, defense lawyers are not specifically trained in plea bargaining
nor in the art of negotiating with prosecutors. 31 Thus, to improve plea bargaining, the process of
deciding cases on the merits has to be improved.
IV.
SUPPLEMENTING MEDIATION WITH PLEA BARGAINING
Theoretically, plea bargaining should act as a compromise where the defense counsel and the
prosecution would agree that the defendant received a fair bargain based on the offense. 32
However, this is often not the case because a compromise does not exist when one party holds all
25
Id. at 575.
Oliver, supra note 2, at 41.
Schulhofer, supra note 12, at 1983.
28
Frank H. Easterbrook, Plea Bargaining as Compromise, 101 YALE L.J. 1969, 1970 (1992).
29
Oliver, supra note 2, at 8.
30
Id. at 9.
31
Id. at 12.
32
Id.
26
27
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 70 the cards and can control the outcome of the defendant’s case. 33 In order to alleviate the extent
of the powers given to the prosecutor during plea bargaining, there needs to be a neutral
oversight that will allow the defense and the prosecution to agree upon a fair deal for the
defendant. 34 By having a neutral oversight involved in the plea bargaining process, the
prosecutorial discretion would be held in check, and it would enable the defense attorney to
efficiently advocate a fair deal for the defendant.35 Consequently, supplementing negotiation
with mediation is the best alternative means of re-establishing the proper balance of power
between the defense counsel and the prosecutor.36
Incorporating mediation into the plea bargaining process can also help with unassisted
resolution efforts in lawyer-to-lawyer negotiation.37 Mediation is an alternative dispute
resolution procedure designed for the parties to resolve a legal dispute in an inexpensive and
expedient process where the agreements tailored to the parties’ individual interests are more
flexible than those that can be achieved through the traditional rules of court.38 Even though
there are a variety of styles of mediation, facilitative mediation, which uses a neutral mediator to
oversee the bargaining process without imposing an opinion on the parties, is the best method for
a mediator to shape the bargaining dialogue in a constructive manner in order to reach a fair
agreement.39 Therefore, mediation is the best alternative to supplement negotiation during plea
bargaining, rather than governing the way the prosecutor selects a plea agreement for the
defendant, or abolishing it altogether.
33
See Lester, supra note 8.
See Lester, supra note 8.
Id.
36
Id.
37
Robert A. Bush, What Do We Need a Mediator For?: Mediation’s Value Added for Negotiators, 12 OHIO ST. J.
ON DISP. RESOL. 1, 6 (1996).
38
Lester, supra note 8, at 578.
39
Id. at 579.
34
35
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 71 One of the benefits of having a neutral mediator involved in plea bargaining is that it allows
the meditator to weigh in on the mutual understanding and the expressions of positions
regardless of the parties’, specifically the prosecutor’s, bargaining power. 40 In essence, a
mediator would govern the negotiation phase to the extent that the prosecutor would have to
justify the reasons for offering a “facially unfair bargain,” thus, undercutting prosecutorial
dominance by a means of finding a “mutually beneficial solution.” 41 At least through this
method, the prosecutor would not be forced to document the basis of specific offers to an extent
that could deter or discourage offers based on fairness.42 Specifically, the neutral mediator can
assist in tailoring a plea agreement that is fair to both parties without imposing his or her opinion
on the parties.43
In essence, having a mediator involved in the plea bargaining process will increase the
defendant’s participation and control over his or her case, which is mostly attenuated in lawyerlawyer negotiation.44 At least through this method, the prosecutor is not just exchanging
demands and positions in order to exploit the defendant’s willingness to accept a plea offer. With
mediation, the negotiation is structured in a way that leads to information becoming available to
the negotiators so that the attorneys can better advise their clients about their situation.45
V.
CONCLUSION
40
Id. at 583.
Id. at 591.
42
Oliver, supra note 2, at 27.
43
Lester, supra note 8, at 579.
44
Bush, supra note 37, 23.
45
Id. at 21.
41
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 72 In the criminal justice system, the process of plea negation is an expedient and sufficient
alternative to court.46 Although it gives the prosecutor “unfettered discretion” and tips the
balance of power to the prosecution’s side, mediation will minimize the prosecutorial power by
limiting the list of threats the prosecutor may use to induce the defendant to enter into a desired
plea offer.47 Through this method, there is a balance of power between both sides and the
defendant can receive a fair plea agreement.48 Mediation offers a way to resolve the dominance
of prosecutorial power in plea bargaining by having the defendant involved in the process,
putting prosecutorial discretion in check, and assuring that the defense attorneys can effectively
advocate for their client.49 By supplementing mediation with plea negotiation, the plea
agreements reached between the prosecutor and the defense counsel may truly be a compromise,
since plea bargains will no longer exist in the shadows of the prosecutor’s preference.
46
Lester, supra note 8, at 593.
Stunz, supra note 1, at 2568.
See Lester, supra note 8.
49
See, supra note 3. 47
48
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 73 Alternative Dispute Resolution In Criminal Cases: Is It Constitutional And Efficient? Shannon M. Morris, M.A., CLA1 INTRODUCTION The courts of this country should not be the places where resolution of disputes begin. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried. - Justice Sandra Day O’Connor
Alternative dispute resolution, hereinafter referred to as “ADR,” generally describes the
use of negotiation,2 mediation,3 or arbitration4 for resolving disputes short of adjudicating
matters through a trial in the public court system. In the United States, while ADR is widely used
and accepted in civil cases, its counterparts in criminal cases have not achieved this same level of
usage or acceptance. Partially due to the institutionalization5 of ADR in civil court, the civil
court caseload has plummeted in recent decades.6 In fact, in federal7 and most state8 courts, ADR
1
J.D. Candidate, Class of 2015, Charleston School of Law.
Negotiation is a dialogue between two or more parties intended to resolve a dispute in a way that idealistically,
creates an outcome that satisfies the various interests of the parties involved. Black’s Law Dictionary (9th ed.
2009), available at Westlaw BLACKS.
3
Mediation is a form of alternative dispute resolution in which a neutral third party, the mediator, assists two or
more parties resolve a dispute by aiding in the negotiation of a settlement. Black’s Law Dictionary (9th ed.
2009), available at Westlaw BLACKS.
4
Arbitration is when a dispute between two or more parties is resolved by one or more neutral third parties, who are
usually agreed to by the disputing parties and whose decision is binding upon the disputing parties. Black’s Law
Dictionary (9th ed. 2009), available at Westlaw BLACKS.
5
Ellen E. Sward, The Decline of the Civil Jury 121 (2001) (“Authority for judicial management of litigation has
several sources, but the door was opened with the promulgation of Rule 16 in the 1938 Federal Rules of Civil
Procedure.”); see also Bobbi McAdoo, A Report to the Minnesota Supreme Court: The Impact of Rule 114 on Civil
Litigation Practice in Minnesota, 25 HAMLINE L. REV. 403, 405 (2002) (concluding that ADR, especially
mediation, has been institutionalized in civil cases).
6
American Arbitration Association, ADR is a Factor in Decreasing Number of Trials, Study Says, 59 APR DISP.
RESOL. J. 5 (2004) (finding that ADR is one of the factors decreasing cases in federal and state courts).
7
28 U.S.C. §§ 651-658 (authorizing ten federal district courts to require participation in arbitration).
8
See e.g. ARIZ. REV. STAT. ANN. §§ 12-133, 12-134 (2014) (Mandatory arbitration in cases less than jurisdictional
limit); ARIZ. R. CIV. P. 16(g) (referral to ADR program created by local rule); DEL. SUPER. CT. CIV. R. 16(b)
(Mandatory ADR may be required by superior court; format agreed upon by parties); HAW. REV. STAT. § 601-20
2
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 74 is now a mandatory part of the civil court process. The common result of this ADR use is that
most civil cases are settled before trial, and the civil court docket has been significantly reduced.
In contrast, while many federal and state courts have initiated ADR programs specifically for
criminal cases, federal and most state courts do not require mandatory ADR in criminal cases.9
Consequently, unlike the civil caseload, the criminal caseload has not dramatically decreased in
recent decades due to the lack of mandatory ADR, an increase in criminal legislation, and other
factors. This article will focus on the use of ADR, potential issues with the constitutionality of its
usage, and its effectiveness in criminal cases. I. DEVELOPMENT OF AMERICAN ALTERNATIVE DISPUTE RESOLUTION A. Alternative Dispute Resolution in Civil Cases (2014) (Civil actions less than $150,000 shall be submitted to mandatory and non-binding arbitration program); ILL.
S. CT. R. 86 (Certain cases subject to mandatory arbitration or mediation program); ILL. S. CT. R. 99 (subject to
local rules); ME. R. CIV. P. 16B (Mandatory ADR in civil cases in the superior court); MASS. GEN. LAWS ch. 211B,
§ 19 (Chief justice for administration and management to implement and supervise standards for mandatory ADR
programs for civil actions in trial court); MINN. GEN. R. PRAC. 114.01 et seq. (Mandatory conference regarding
ADR process with informational statement to the court); MONT. CODE ANN. §§ 25-20-16, 25-21-7 (Mandatory
appellate ADR for certain categories of cases; pretrial conferences serve to facilitate settlement); NEV. ARBITRATION
R. B.1 et seq. (Cases less than $50,000 subject to mandatory Court Annexed Arbitration Program; mediation
available with consent of parties); N.H. SUPER. CT. R. 170 (Mandatory ADR in superior court; mediation, early
neutral, or arbitration); N.Y. R. CHIEF JUDGE § 28.2; N.Y. UNIFORM R. TRIAL CT. § 202.70(g); see also Alternative
Dispute Resolution, N.Y. State Unified Ct. Sys., available at http://www.nycourts.gov/ip/adr (Mandatory arbitration
for cases less than $6,000; court may direct parties to mediation in Commercial Division); OHIO S. CT. R.
SUPERINTENDENCE 15, 16 (Mandatory arbitration by referral permitted by local rule; mediation may be provided by
local rule); OR. UNIFORM TRIAL CT R. ch. 13 (All civil actions assigned to arbitration unless sufficient grounds
stated for exemption by statute or rule); 42 PA. CONS. STAT. ANN. § 7361; PA. R. CT. no. 1300 (Cases less than
$50,000 submitted to compulsory arbitration; local courts administer compulsory arbitration programs); R.I. GEN.
LAWS § 8-6-5 (Nonbinding arbitration in the superior court; rejection of arbitration award followed by equal or
lesser award at trial results in sanction); S.C. CIR. CT. ADR R. 3 (All civil actions subject to court-ordered mediation
unless parties agree to conduct an arbitration); UTAH CODE JUDICIAL ADMIN. R. 4-510 (Court-annexed ADR for
civil cases in the district courts; referral by the court may be made at any time); VT. R. CIV. P. 16.3 (Mandatory
participation in ADR for certain civil actions in the superior court); WASH. REV. CODE § 7.06.020 (Mandatory
arbitration in certain counties for superior court cases less than $15,000); WIS. STAT. § 802.12 (Judge may order the
parties, with or without consent, to select a settlement alternative, including mediation).
9
Jack Hanna, Mediation in Criminal Matters, 15 DISP. RESOL. MAG. 4, 5 (2008) [hereinafter Hanna]; see also Mark
S. Umbreit, Robert Coates, & Betty Vos, Victim-Offender Mediation: Three Decades of Practice and Research, 22
CONFLICT RESOL. Q. 279, 270-81 (2004) (citing over 300 criminal mediation programs in the United States)
[hereinafter Victim-Offender Mediation].
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 75 ADR techniques have been employed in the context of various legal, political, and other
disputes at least since the time of Homer.10 American arbitration can trace its roots to the
fourteenth century, when trade guilds and trade fairs adopted arbitration ordinances in England.11
The concept of ADR as a means to resolve disputes was transplanted into the North American
colonies when the European settlers created an adjudicatory system for effectively handling
disagreements among their inhabitants. For instance, in 1647, minor civil and mercantile disputes
were arbitrated by the Board of Nine in New Amsterdam, which is now known as New York
City.12 In addition, during this same time period, debt, or trespass and boundary disputes were
arbitrated in colonial Connecticut, Pennsylvania, Massachusetts, and South Carolina.13
Moreover, the federal government began encouraging the usage of ADR methods in resolving
disputes. For example, in the Patent Act of 1790,14 Congress provided for an arbitration system
of competing patent claims. In such a dispute, an adjudicative board, consisting of one member
appointed by each patent applicant and another by the Secretary of State, would render a binding
decision regarding the patent.15 Moreover, if an applicant opted out of this arbitration, the other
applicant’s patent would be summarily approved.16 While ADR has been used in the United States since before the signing of the Declaration
of Independence,17 the increased preference for utilizing ADR methods to resolve legal disputes
has only occurred during the last fifty years. For instance, in the 1920s, over a dozen states
10
Warren E. Burger, Isn’t There a Better Way?, 68 A.B.A. J. 274 (1982) [hereinafter Burger].
Id.
12
Id.; New York City was known as New Amsterdam from 1625 until it was renamed New York City in 1664 when
the British seized it from the Dutch. See New York City, The History Channel (2015), available at
http://www.history.com/topics/new-york-city.
13
Burger, supra note 10, at 274.
14
Patent Act of 1790, Ch. 7, 1 Stat. 109-112 (April 10, 1790).
15
Id.
16
Id.
17
Jerome T. Barrett & Joseph P. Barrett, A History Of Alternative Dispute Resolution 46 (2006) [hereinafter
Barrett].
11
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 76 passed modern arbitration laws18 and Congress enacted the Federal Arbitration Act.19 However,
the major catalyzing events for the increased preference of ADR was the turmoil surrounding the
passage of the Civil Rights Act of 1964, the civil rights movement in the 1960s, and the growth
in labor organizations after the passage of the National Labor Relations Act.20 As mentioned
previously in this article, ADR is one of the factors that has caused the civil caseload to
dramatically decrease.21 In fact, according to the United States Courts’ website, there were
141,913 civil cases alleging a federal question filed in federal court between March 2012 and
March 2013.22 However, only 1.4 percent of these cases23 reached trial, with a staggering
111,363 cases being settled before trial and 30,550 cases being dismissed or withdrawn.24 While
ADR has become the preferred method of resolving civil cases,25 ADR’s usage in criminal cases
has been restricted by the United States criminal justice system’s philosophy and the
constitutional rights of criminal defendants. B. Alternative Dispute Resolution in Criminal Cases 18
Ian R. Macneil, American Arbitration Law: Reformation, Nationalization, And Internationalization 54-55 (1992)
(noting that nearly one dozen states adopted modern arbitration statutes during the 1920s).
19
Federal Arbitration Act, 43 Stat. 883 (Feb. 12, 1925), codified at 9 U.S.C. § 1 et seq. (2014).
20
Barrett, supra note 17, at 159.
21
From July 1, 2012 until June 30, 2013, 57% of all cases that were referred to mediation by the court were settled
before trial in the Eastern District of New York. Gerald P. Lepp, Ka Hye Chin, & Daniella Duxbury, Mediation
Report, Aug. 13, 2013, available at https://img.nyed.uscourts.gov/files/local_rules/2012-2013mediationreport.pdf.
The Department of Justice found that 75% of voluntary ADR proceedings and 49% of court-order ADR proceedings
resulted in the civil cases settling. See Department of Justice, Statistical Summary: Use and Benefits of Alternative
Dispute Resolution by the Department of Justice, Jan. 21, 2015, available at http://www.justice.gov/olp/alternativedispute-resolution-department-justice.
22
United States Courts, Civil Cases Terminated, by Nature of Suit and Action Taken, available at
http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/FederalJudicialCaseloadStatistics/2013/tables/C04M
ar13.pdf.
23
Id. Only 1,985 cases alleging a federal question filed in federal court between March 2012 and March 2013
reached either a bench or jury trial.
24
Id.
25
Elizabeth Plapinger & Donna Stienstra, ADR and Settlement in the Federal Courts: A Sourcebook for Judges &
Lawyers 4-5 (1996).
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 77 The increase in criminal ADR raises concerns centered on two critical differences
between criminal and civil cases, which are what is at risk, and who are the stakeholders in the
dispute. Whereas civil ADR usually centers upon issues and remedies involving damages and
equity, the underlying interests in criminal ADR are the defendant’s life and liberty. Moreover,
the identity of the principal stakeholders in civil cases is usually more apparent than in criminal
cases. While complex civil ADR may often include secondary interested parties, the principal
stakeholders are the plaintiff and the defendant in the underlying action. In contrast, the
stakeholders’ identities are more complicated in criminal cases, because while the criminal
defendant is the primary stakeholder on the defense side, the stakeholders’ identities on the
prosecutorial side are more challenging to discern. The prosecutor is the party who brings the
action on behalf of the government as a representative of society.26 In addition, the prosecutor
makes the ultimate decision on whether to pursue an action.27 The prosecutor must seek justice
and should balance the interests of all members of society, but when the balance cannot be
achieved in an individual case, the prosecutor must do what is in society’s best interests.28 The
list of other potential stakeholders on the prosecutorial side may include the victim, the victim’s
advocate, or other support personnel,29 as well as the victim’s significant other or family,
26
Bruce A. Green, Why Should Prosecutors "Seek Justice"?, 26 FORDHAM URB. L.J. 607, 633 (1999) (noting that
“the prosecutor is not merely the sovereign’s lawyer. The sovereign delegates most of its authority and discretion to
its prosecutors. Thus, the prosecutor makes decisions that are ordinarily entrusted to a client.”); see also Roberta K.
Flowers, A Code of Their Own: Updating the Ethics Codes to Include the Non-adversarial Roles of Federal
Prosecutors, 37 B.C. L. REV. 923, 931 (1996); see also Nat’l Dist. Attorneys Ass’n, National Prosecution Standards
(2009).
27
Green, supra note 26, at 633.
28
Nat’l Dist. Attorneys Ass’n, National Prosecution Standards 3-5 (2009).
29
See, e.g., Thomas L. Kirsch II, Problems in Domestic Violence: Should Victims be Forced to Participate in the
Prosecution of Their Abusers?, 7 WM. & MARY J. WOMEN & L. 383, 432 (2001) (stating that advocates are used
most in counseling the victim and providing information to the victim); Anna Farber Conrad, The Use of Victim
Advocates and Expert Witnesses in Battered Women Cases, 30-Dec. COLO. LAW 43 (2001) (finding that the victim
advocate basically educates, communicates, investigates, builds trust, and identifies resources); Commonwealth v.
Harris, 409 Mass. 461, 470 (1991) (recognizing that victim advocates serve an important and “salutary” function by
providing “victims, witnesses, and family members needed assistance, information, and support, and generally help
them to cope with the realities of the criminal justice system and the disruption of personal affairs attending a
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 78 members of the affected community, the public, the media, the electorate,30 or other government
officials.31 These stakeholders may influence the prosecution and hold the prosecutor
accountable for the outcome of a specific action. However, the government’s focus in criminal
cases is what is in society’s best interests, not necessarily what is in the actual victim’s best
interests, whereas the defense’s focus is on the defendant's constitutional rights in order to ensure
that justice is achieved and the right person is jailed. Currently, while most types of ADR are
accepted and used in the juvenile criminal cases, the most widely and accepted use of ADR in
adult criminal cases is in plea bargaining. II. ALTERNATIVE DISPUTE RESOLUTION IN CRIMINAL CONTEXT The United States Constitution requires that due process and procedural safeguards must
be followed before the government can take a criminal defendant’s life, liberty, or property
interest away.32 Despite the initial rejection of using ADR in criminal settings, since the 1970s,
the use of ADR in criminal cases has been steadily increasing in popularity, but with
constitutional safeguards. Whereas ADR techniques are widely and successfully used in juvenile
criminal cases, its usage in adult criminal cases, beyond plea negotiations, has been resisted due
to the underlying philosophy of the adult criminal justice system and concerns of potential
constitutional violations. However, in the past few decades, there has been an increase in the
criminal prosecution during a time of personal trauma”); Allen v. Commonwealth, No. 1999- SC-0897-MR, 2003
WL 1193352, at *4 (Ky. Jan. 23, 2003) (warning that the victim’s advocate cannot in any way impair a defendant’s
constitutional rights to a fair trial).
30
An uninvited but always present stakeholder in any prosecution is the electorate who holds the power to re-elect
the prosecutor; thus the deputy prosecutor's boss, the elected prosecutor, is also a stakeholder. Anthony C.
Thompson, It Takes a Community to Prosecute, 77 NOTRE DAME L. REV. 321, 329 (2002) (noting that prosecutors
wield their discretionary powers in ways that seek support from the electorate in future elections).
31
Government officials become stakeholders when they insert themselves into litigation. John Gleeson, Supervising
Federal Capital Punishment: Why the Attorney General Should Defer When U.S. Attorneys Recommend Against the
Death Penalty, 89 VA. L. REV. 1697, 1697-98 (2003) (noting that the U.S. Attorney General appears to be inserting
himself into the capital cases).
32
Ronald D. Rotunda & John E. Nowak, Treatise On Constitutional Law Substance and Procedure § 17.2 (3d ed.
1999).
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 79 usage of plea bargaining, and other ADR programs have been implemented in adult criminal
cases. For instance, in 2006, the ABA’s Criminal Justice Section established the ADR and
Restorative Justice Committee.33 In addition, in 2008, the ABA Board of Governors awarded a
grant to start the Mediation in Criminal Matters Project, which promotes mediation in criminal
settings. A. Alternative Dispute Resolution in Juvenile Criminal Cases Juvenile justice programs that utilize ADR have yielded very promising results, partially
because ADR helps to facilitate the ultimate underlying aim of the juvenile justice system. The
juvenile justice system was created at the turn of the century to address the differences between
those acts committed by adults and those committed by delinquent children and adolescents.34 It
developed through a series of cases, including and subsequent to Gault.35 In Gault, the parents of
a 15-year-old boy petitioned the court for a writ of habeas corpus alleging lack of due process.36
Specifically, the juvenile was committed as a juvenile delinquent until he was 21 by a juvenile
court for violating his probation by making lewd phone calls to female neighbor.37 Moreover, the
juvenile’s confession, which was taken without the presence of his parents, was used against him
in the juvenile hearing and he was not afforded the opportunity to confront witnesses at his
juvenile hearing.38 Furthermore, he was never advised of his right to remain silent or his right to
counsel.39 Gault extended to juveniles many of the same constitutional procedural safeguards
33
Hanna, supra note 9, at 5.
In re Gault, 387 U.S. 1, 14-15 (1967). The system of socialized juvenile justice started in Cook County, Illinois in
1899. The system was focused on preventative rather than corrective measures, attempting to prevent juveniles from
being involved with the criminal justice system after arrest.
35
In re Gault, 387 U.S. 1 (1967).
36
Id. at 4-5.
37
Id.
38
Id.
39
Gault, 387 U.S. at 4-5.
34
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 80 afforded to adult criminal defendants.40 Prior to 1899, juveniles were sentenced and tried in the
same courts and under the same standards as adults.41 Reformers viewed children as essentially
good in nature and believed that the harshness of the criminal justice system was inappropriate
for children.42 They argued that children required treatment and rehabilitation, not punishment.43
This idea of rehabilitative treatment became the basis of the current juvenile justice system.
Moreover, in the mid-1970s, the Juvenile Justice and Delinquency Prevention Act reinforced the
idea that juveniles and adults should be separated from one another when incarcerated and the
rehabilitative view that is the underpinning of the current juvenile justice system.44 Current ADR procedures developed in the criminal context from earlier informal justice
programs,45 which were more holistic in how they addressed deviant social behavior. In addition,
ADR techniques use a holistic approach to the treatment of juvenile offenders because these
methods involve providing solutions that are more concentrated upon the specific situations
involved that addresses the needs of the offender, the victim, and the community.46 Techniques
such as victim offender mediation and family group conferencing provide an “opportunity to
40
Id. at 10. The Gault court established that juveniles are entitled to notice of charges, the right to counsel, the right
to confrontation and cross-examination, the privilege against self-incrimination, the right to a transcript of the
proceeding, and the right to appellate review.
41
Gault, 387 U.S. at 14.
42
Id.
43
Id.
44
The legislative purpose in §102 as providing "the necessary leadership, resources, and coordination to develop and
implement effective methods of preventing and reducing juvenile delinquency," reflecting an emphasis on methods
to help reduce crime other than imprisonment. Juvenile and Delinquency Prevention Act of 1974, 88 Stat. 1109
(1974).
45
Jethro K. Lieberman & James F. Henry, Lessons from the Alternative Dispute Resolution Movement, 53 U. CHI. L.
REV. 424, 424-25 (1986) (discussing how various “informal justice mechanisms” had long played a role in
indigenous communities and other societies).
46
Erik Luna, The Practice of Restorative Justice: Punishment Theory, Holism, and the Procedural Conception of
Restorative Justice, 2003 UTAH L. REV. 205, 227 (2003) (advocates a more holistic approach which addresses “the
needs of those directly injured by crime and the resulting damage done to social relationships” and is “mindful of
damaged relationships and neglected obligations in civil society”).
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 81 resolve legal and social issues without formal legal proceedings.”47 Essentially, by establishing a
dialogue among those affected by a particular crime, ADR methods go beyond the mere crime
itself and come closer to the juvenile justice ideal of addressing the underlying problem behavior
that initially led to the criminal activity.48 a. Victim offender mediation in juvenile cases
Victim offender mediation, the most widely used form of ADR in juvenile justice, has
existed in the United States for nearly forty years.49 Actively involving affected parties in the
resolution of criminal activity offers offenders an opportunity for meaningful accountability that
punishment could not provide.50 The parties engage in a storytelling process in which the victim
and the offender express how each views the offense.51 Then they form a mutually acceptable
agreement regarding how the offender will make amends for his or her actions, including a
suitable punishment if warranted.52 First, the offender must admit guilt,53 then the third-party
neutral mediator confirms that all parties are voluntary participants in the mediation.54 The
mediator confers separately with each party to prepare each for the mediation session and to get a
sense of each party’s position in order to better be able to facilitate the eventual resolution of the
47
Cynthia Conward, The Juvenile Justice System: Not Necessarily in the Best Interests of Children, 33 NEW ENG. L.
REV. 39, 74 (1998) (discussing increased opportunities for "problem-solving discussions") [hereinafter Conward];
See generally Ilyssa Wellikoff, Victim-Offender Mediation and Violent Crimes: On the Way to Justice, 5 CARDOZO
J. CONFLICT RESOL. 1 (2003) [hereinafter Wellikoff].
48
Lindsay G. Arthur, Punishment Doesn’t Work!, 51 JUV. & FAM. CT. J. 37, 39 (2000) [hereinafter Arthur]; Robert
E. Shepherd, The Relevance of Brain Research to Juvenile Defense, 19 CRIM. JUST. 51 (2005).
49
Mary Ellen Reimund, The Law and Restorative Justice: Friend or Foe? A Systemic Look at the Legal Issues in
Restorative Justice, 53 DRAKE L. REV. 667, 676 (2005) [hereinafter Friend or Foe].
50
Wellikoff, supra note 43.
51
Friend or Foe, supra note 49, at 673-74.
52
Friend or Foe, supra note 49, at 673-74.
53
Glenda L. Cottam, Mediation and Young People: A Look at How Far We’ve Come, 29 CREIGHTON L. REV. 1517,
1537-39 (1996) [hereinafter Cottam]; Gerry Johnstone, Restorative Justice: Ideas, Values, Debates 99 (2002)
[hereinafter Johnstone].
54
Cottam, supra note 53, at 1537-1539; See generally Johnstone, supra note 53, at 88-92.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 82 conflict.55 When the mediation session begins, the parties are usually in joint caucus, the victim
expresses the full impact of the crime upon his or her life, and then the offender is given the
opportunity to respond to the victim.56 This allows the victim to be able to learn the answers to
many lingering questions and express his or her frustration in a safe environment.57 Next, by
responding to the victim’s statement, the offender has the opportunity to become accountable for
his or her actions and gain a sense of empathy for the victim, which ideally makes it more
difficult for the offender to repeat this type of crime in the future.58 This allows both to have a
sense of control over the process; the victim feels less fearful of and victimized by the offender,
and the offender feels less helpless and victimized by the system.59 Since it offers both parties a
neutral and safe environment within which to encounter one another, the process can provide the
following benefits: relative informality, accountability, serving the child’s individual needs, the
offender’s development of empathy towards others, and confidentiality.60 Furthermore, the rate
of recidivism is reduced because of the offender’s sense of accountability and increased
likelihood of compliance with the agreement achieved through this process.61 b. Family group conferencing in juvenile cases
55
James Coben & Penelope Harley, Intentional Conversations About Restorative Justice, Mediation and the
Practice of Law, 25 HAMLINE J. PUB. L. & POL’Y 235, 240 (2004).
Gordon Brazemore & Curt Taylor Griffiths, Conferences, Circles, Board, and Mediations: The “New Wave” of
Community Justice Decisionmaking, 61 FED. PROBATION 25, 29 (1997) (discussing order of speakers in VOM);
Mark S. Umbreit & Susan L. Stacey, Family Group Conferencing Comes to the U.S.: A Comparison with VictimOffender Mediation, 47 JUV. & FAM. CT. J. 29, 30 (1996) [hereinafter Family Group Conferencing].
57
Cottam, supra note 53, at 1537-38
58
Cottam, supra note 53, at 1537; Marianne McConnell, Mediation - An Alternative to the New Jersey Juvenile
Justice System?, 20 SETON HALL LEGIS, J. 433, 455 (1996).
59
Katherine L. Joseph, Note, Victim-Offender Mediation: What Social & Political Factors Will Affect Its
Development?, 11 OHIO ST. J. ON DISP. RESOL. 207, 212-13 (1996) (discussing positive aspects of victim offender
mediation).
60
Michael Lindstadt, Note, Employing Mediation to Approach Truants, 43 FAM. CT. REV. 303, 309-11 (2005)
(outlining overall benefits of mediation) [hereinafter Lindstadt].
61
C. Aaron McNeece & Sherry Jackson, Juvenile Justice Policy: Current Trends & 21st Century Issues, in The
Juvenile Justice Sourcebook: Past, Present, and Future 41, 46 (2004) (noting positive aspects of mediation for
juvenile offenders).
56
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 83 Whereas the traditional justice system often destroys the sense of community by placing
the community and the victim in an adversarial position to the offender, family group
conferencing is an ADR program that allows all affected parties to resolve the conflict while still
preserving a sense of community.62 This program is a broadened version of victim offender
mediation because it invites the offender, the victim, and concerned members of the community
to participate.63 It enables the offender, the victim, and concerned members of their communities,
usually parents and teachers, to participate in a facilitated conversation resulting in a potential
constructive resolution of the criminal behavior.64 After the offender has admitted guilt, the
facilitator contacts conference participants to review the process and expectations with them.65 A
similar dialogue occurs in victim offender mediation. However, in victim offender mediation,
this dialogue is in person, whereas this dialogue can occur over the phone in family group
conferencing.66 In addition, while the victim offender mediation preconference involves the
mediator listening to each participant’s story, family group conferencing preconference seeks to
preserve objectivity and the power of the conferencing experience by not having coordinators
listen to the tales of any of the participants.67 The actual conference meeting works almost
identically to victim offender mediation in giving all participants the opportunity to speak about
the incident, but the offender speaks first.68 Following the discussion, the conference concludes
with an apology from the offender, an agreement about reparations, and the development of an
62
Christine Coumarelos & Don Weatherburn, Targeting Intervention Strategies to Reduce Juvenile Recidivism, 28
THE AUSTL. & N.Z. J. OF CRIMINOLOGY, 1995 JC LEXIS 13 at 5 (1995) (noting ill effects of destroying sense of
community).
63
Family Group Conferencing, supra note 56, at 30.
64
Johnstone, supra note 53, at 151.
65
Family Group Conferencing, supra note 56, at 31.
66
Family Group Conferencing, supra note 56, at 31.
67
Family Group Conferencing, supra note 56, at 32.
68
Carol LaPrairie, Conferencing in Aboriginal Communities in Canada: Finding Middle Ground in Criminal
Justice, 6 CRIM. L.F. 576, 586 (1995) [hereinafter LaPrairie]; Family Group Conferencing, supra note 56, at 34.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 84 outcome acceptable to the entire group.69 Moreover, the main difference between victim offender
mediation and family group conferencing is the number and diversity of participants involved in
the process.70 Furthermore, by involving a larger community, it has the potential to reduce
recidivism to a greater extent than victim offender mediation.71 c. ADR benefits in juvenile cases
As a more holistic approach that seeks to preserve social relationships, ADR techniques
such as victim offender mediation and family group conferencing are ideal tools for juvenile
justice because children are generally less set in their ways and more capable of change than are
adults.72 Essentially, the emphasis on accountability makes these programs particularly valuable
alternatives to traditional criminal justice.73 Based on evidence that placing juvenile offenders in
prison does little to lower recidivism rates and the importance of holding offenders responsible
for their actions, these ADR techniques satisfy both the punitive and rehabilitative theories of
juvenile offender treatment by promoting accountability and intervening to prevent low-level,
non-violent juvenile offenders from embarking on a life of crime.74 By encouraging parties to see
one another as individuals, family group conferencing and victim offender mediation empower
the parties to create a positive environment from which the juvenile offender, the victim, and the
community can build towards a productive future.75 By contrast, the criminal system focuses
69
LaPrairie, supra note 68, at 586; Nancy Lucas, Note, Restitution, Rehabilitation, Prevention, and Transformation:
Victim-Offender Mediation for First-Time Non-Violent Youthful Offenders, 29 HOFSTRA L. REV. 1365, 1378 (2001).
70
Family Group Conferencing, supra note 56, at 31.
71
LaPrairie, supra note 68, at 583.
72
Christopher Slobogin, Mark R. Fondacaro & Jennifer Woolard, A Prevention Model of Juvenile Justice: The
Promise of Kansas v. Hendricks for Children, 1999 WIS. L. REV. 185, 190 (1999).
73
Cottam, supra note 53, at 1537; Family Group Conferencing, supra note 56, at 35.
74
Arthur, supra note 48, at 37; Conward, supra note 47, at 75.
75
Lindstadt, supra note 60, at 309-11 (noting therapeutic effect of mediation on offender, through an exploration of
mediation in truancy cases).
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 85 simply on the crimes, punishes through prison sentences, and returns offenders to society “better
educated in how to commit bigger crimes without being caught.”76 B. Alternative Dispute Resolution in Adult Criminal Cases 1. Plea Bargains
Negotiations in the form of plea bargaining are often used in criminal cases.77 Plea
bargaining is the process in which the prosecutor negotiates a plea agreement with the criminal
defendant. A plea agreement is an agreement between the prosecution and the criminal defendant
by which the accused changes his or her plea from not guilty to guilty in return for an offer by
the prosecutor. The prosecutor’s motive for offering a plea agreement is to save the government
a large sum of money and spare the victims or witnesses the stress of giving evidence whereas
the defendant often pled guilty to avoid a lengthy trial. Plea bargaining has steadily increased
since the 1980s and is the most widely used form of ADR in adult criminal cases. In fact,
according to the Bureau of Justice Statistics, in 2003, there were 75,573 cases disposed of in
federal district court by plea bargaining or trial78 with ninety-five percent of all federal criminal
cases being adjudicated by guilty pleas.79 Furthermore, it is estimated that ninety to ninety-five
percent of all state criminal cases are now disposed of through plea bargaining.80 In comparison,
76
Arthur, supra note 48, at 38; Dieter Rössner, Mediation as a Basic Element of Crime Control: Theoretical and
Empirical Comments, 3 BUFF. CRIM. L. REV. 211, 218 (1999) (noting important differences between individuals and
their acts).
77
Joseph A. Colquitt, Ad Hoc Plea Bargaining, 75 TUL. L. REV. 695 (2001) [hereinafter Colquitt].
78
Lindsey Devers, Plea and Charge Bargaining: Research Summary, available at
https://www.bja.gov/Publications/PleaBargainingResearchSummary.pdf [hereinafter Devers].
79
Colquitt, supra note 77, at 700; Devers, supra note 78, at 1.
80
Devers, supra note 78, at 1.
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Volume IV, Issue 3 p. 86 in 1979, only forty-five out of every hundred felony criminal cases were disposed of by guilty
pleas.81 a. Constitutional concerns with plea agreements
While the prevalence of plea bargaining has raised constitutional concerns, the Supreme
Court has generally upheld plea agreements as constitutional. Criminal defendants can waive
nearly all of their constitutional rights in the plea context if the plea is entered into voluntarily
and intelligently, and with the assistance of competent counsel.82 The Supreme Court held that
plea agreements are constitutional if these agreements provide that the criminal defendant
knowingly and voluntarily pled guilty.83 In other words, the government “may not produce a plea
by actual or threatened physical harm or by mental coercion overbearing the will of the
defendant.”84 The Court has interpreted overbearing the defendant’s will to mean something
more than mere pressure or inducement by the government for the defendant to accept the plea
agreement. Moreover, the Supreme Court found that the “plea bargaining process necessarily
exerts pressure on defendants to plead guilty and to abandon a series of fundamental rights, but
we have repeatedly held that the government ‘may encourage a guilty plea by offering
substantial benefits in return for the plea.’”85 In accepting a plea agreement, criminal defendants
waive certain constitutional rights, including their right to a trial by jury with the assistance of
counsel, their right to confront witnesses, and the privilege against self-incrimination. 81
U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SPECIAL REPORT THE PREVALENCE OF GUILTY PLEAS,
(Dec. 1984) available at http://www.bjs.gov/content/pub/pdf/pgp.pdf.
82
Daniel P. Blank, Plea Bargain Waivers Reconsidered: A Legal Pragmatist's Guide to Loss, Abandonment and
Alienation, 68 FORDHAM L. REV. 2011, 2025 (2000) [hereinafter Blank]; U. S. v. Broce, 488 U.S. 563, 569 (1989)
(“[W]hen the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the
proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If
the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack”).
83
Brady v. U. S., 397 U.S. 742, 750 (1970).
84
Id.
85
United States v. Mezzanatto, 513 U.S. 196, 209-10 (1995) (quoting Corbitt v. New Jersey, 439 U.S. 212, 219
(1978)).
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 87 b. Arguments against plea agreements
Despite the Supreme Court’s general acceptance of plea agreements, opponents argue
that the plea bargaining process is inherently flawed and unfair to criminal defendants,86
especially to poor and unsophisticated defendants.87 These critics allege that the government’s
bargaining power is so great that it can coerce innocent criminal defendants into pleading guilty
because the “threat of much harsher penalties after trial is impermissibly coercive upon the
defendants and causes them to abandon the procedural protections of trial.”88 Moreover, these
critics allege that plea agreements increase the likelihood that more innocent defendants will be
sentenced because the risk of not accepting the plea, going to trial, and having the prosecutor
elevate the charges is often considered too great a risk and causes some innocent people to plead
guilty.89 Additionally, critics allege that plea bargaining “undermines the integrity of the
criminal justice system”90 because it is “an incompetent, inefficient, and lazy method of
administering justice [that] compromise[s] the defendant’s right to a jury trial.”91 Moreover,
opponents argued that the increase in plea bargaining will result in the loss of the virtues inherent
86
Douglas D. Guidorizzi, Comment, Should We Really “Ban” Plea Bargaining?: The Core Concerns of Plea
Bargaining Critics, 47 EMORY L.J. 753, 753 (1998) (citing a 1992 survey of the seventy-five most populous
counties finding that guilty pleas accounted for 92% of all state court convictions and arguing that while plea
bargaining has its flaws, it is “a natural component of our adversarial system that has been regulated since the
nineteenth century”) [hereinafter Guidorizzi].
87
Blank, supra note 82, at 2016.
88
Id.; see also Broce, 488 U.S. at 569 (“[W]hen the judgment of conviction upon a guilty plea has become final and
the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was
both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule,
foreclose the collateral attack.”).
89
Generally, courts refuse to find vindictive prosecution when prosecutor threatens to increase the charges if the
defendant does not accept the plea. See, e.g., State v. Tilson, 794 A.2d 465 (R.I. 2002) (holding that in the course of
pretrial plea negotiations, a prosecutor's threat to recharge the defendant with greater charges should the defendant
not plead to the current lesser charges is not grounds for a finding of vindictive prosecution, even when the threat is
made immediately before trial); Blackledge v. Perry, 417 U.S. 21, 27-28 (1974) (stating that “by ‘upping the ante’
through a felony indictment whenever [one] pursues his statutory appellate remedy-the [government] can insure that
only the most hardy defendants will brave the hazards of a de novo trial.”).
90
Guidorizzi, supra note 86, at 767.
91
Guidorizzi, supra note 86, at 761.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 88 in public trials.92 Essentially, they argue that plea bargaining subverts the due process standards
and proof elements, which influence the nature of any plea.93 Concerns regarding the perceived unfairness to criminal defendants are not the only
criticism of plea bargaining. Other opponents allege that these plea deals only benefit the
defendants and it is society’s interests that are harmed by plea bargaining. They argue that
criminals benefit from plea agreements because they are not really punished for their crimes, but
rather they are given unduly lenient sentences.94 These individuals further argue that “securing
concessions from the prosecutor perpetuates the image that criminals can evade the law provided
they are willing to bargain”95 and that “plea bargaining undermines the deterrent effect of
criminal sanctions.” 96 They maintain that defendants view it as a way to beat the system97
because in exchange for a guilty plea, defendants usually receive some charge and sentencing
concessions.98 Furthermore, critics point to the public distrust in a system that negotiates with
criminals. For instance, some policymakers have attempted to ban plea bargaining in response to
the public’s apparent loss of faith in a system that openly bargains with criminals.99 However,
none of these bans have ever endured.100 Andrew Heitman 5/6/15 3:55 PM
Comment [1]: Can’t find source, but if it’s a book, the cite needs to be large and small caps c. Benefits of plea agreements
92
Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 CALIF. L. REV. 652, 720 (1981).
Thomas W. Church, In Defense of Bargain Justice, 13 LAW & SOC’Y REV. 509, 514-15 (1979).
Guidorizzi, supra note 86, at 770.
95
Guidorizzi, supra note 86, at 771.
96
Guidorizzi, supra note 86, at 771.
97
Guidorizzi, supra note 86, at 771.
98
Guidorizzi, supra note 86, at 766, (acknowledging that “although they lose the chance of an acquittal, defendants
escape the maximum penalties provided by statute while at the same time 'avoiding the anxieties and uncertainties of
a trial.”) (citing Blackledge v. Allison, 431 U.S. 63, 71 (1977)).
99
Guidorizzi, supra note 86, at 753-54.
100
Guidorizzi, supra note 86, at 753-54; see, e.g., Michael L. Rubinstein et al., The Effect of the Official Prohibition
of Plea Bargaining on the Disposition of Felony Cases in the Alaska Criminal Courts in Alaska Bans Plea
Bargaining, 257-59 (1980).
93
94
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 89 In contrast, proponents claim that plea bargaining conserves judicial resources because
these bargains “alleviate congested caseloads and reduce the expense of providing jury trials.”101
Furthermore, the Supreme Court has stated that plea bargaining is a highly desirable part of the
criminal system because it is quicker and provides a less expensive way of disposing of criminal
cases.102 In addition, proponents note that it provides victims with an “immediate sense of
closure along with the knowledge that the defendant will not go unpunished for the crime” while
allowing the victims to avoid “the rigors of testifying at trial and the possibility of the
prosecution not getting a conviction.”103 Ultimately, while plea bargaining is far from a perfect
process, it allows the government to obtain some measure of justice for society on cases that it
might not otherwise be able to bring to a satisfactory conclusion. 2. Mediation
Since the 1970s, mediation has been used in criminal cases.104 In criminal mediation, the
principal stakeholders are the defendant and the government. While the actual victim is not the
principal stakeholder, the victim’s interest in the matter makes the victim a stakeholder with
more than a secondary interest. Due to these competing interests, criminal mediation inherently
takes the form of a multi-party, multi- interest process. Criminal mediation did not gain
popularity until recent decades because the American criminal justice system historically
adhered and continues to adhere to the retribution theory instead of the theory of restorative
justice.105 However, recently, restorative justice programs have become popular as an alternative
and more creative means of administering justice. While criminal mediation’s usage in
101
Guidorizzi, supra note 86, at 767.
Santobello v. New York, 404 U.S. 257, 261 (1971).
103
Guidorizzi, supra note 86, at 767.
104
Victim-Offender Mediation, supra note 9, at 270-81.
105
Ronen Perry, The Role of Retributive Justice in the Common Law of Torts: A Descriptive Theory, 73 TENN. L.
REV. 177 (2006); see also Andrew Ashworth, Sentencing and Criminal Justice 61-73 (3d ed. 2000).
102
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 90 restorative justice programs, such as victim offender mediation, have raised several concerns
regarding criminal defendants’ constitutional rights, many of these programs have yielded
promising results.106 a. Retribution theory
Under the retribution theory, crime is viewed as a violation against the state “defined by
lawbreaking and guilt.” Essentially, under this theory, punishment is justified because it is
deserved and the punishment imposed should be in proportion to the wrongdoing that the
offender committed. Moreover, justice requires determining blame for the crime and
administering “pain in a contest between the offender and the state by systemic rules.”107
Systems and programs that use retribution philosophy do not seek to heal the community or
solve the underlying problem, but rather, they seek to promote society’s interests by punishing
the offender. Critics of retribution ideology point out that the focus of crime changed from being
a victim offender conflict to a violation of the King’s peace during the Norman invasion of
Britain in the twelfth century108 as a means for the monarch to establish preeminence and
domination of his people.109 These critics allege that restorative justice was the ancient focus on
dealing with criminal behavior and is the most widely used criminal justice theory in the world
because it addresses the underlying problems that caused the criminal behavior in the first place.
106
See Mary Ellen Reimund, Is Restorative Justice on a Collision Course with the Constitution?, 3 APPALACHIAN J.
L. 1, 12-33 (2004) (discussing the constitutional implications of restorative justice) [hereinafter Reimund,
Restorative Justice]; Ilyssa Wellikoff, Note, Victim-Offender Mediation and Violent Crimes: On the Way to Justice,
5 CARDOZO J. CONFLICT RESOL. 1 (2003) (regarding victim-offender mediation and more serious cases).
107
Howard Zehr, Changing Lenses 181 (1990) [hereinafter Zehr].
108
Mark S. Umbreit, VICTIM MEETS OFFENDER: THE IMPACT OF RESTORATIVE JUSTICE AND MEDIATION 1 (1994);
Daniel W. Van Ness & Karen Heetderks Strong, RESTORING JUSTICE 135 (1997) [hereinafter RESTORING JUSTICE].
109
John Braithwaite, Restorative Justice: Assessing Optimistic and Pessimistic Accounts, 25 CRIME & JUST. 1, 2
(1999); RESTORING JUSTICE, supra note 108, at 1-9; Zehr, supra note 107, at 97-125 (detailed historical analysis).
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 91 b.
Restorative theory
Restorative justice is a theory that considers crime and wrongdoing to be an offense
against an individual or community instead of the state.110 In other words, crime is viewed as a
violation of people and relationships, which creates the obligation to make things right.111 Under
this theory, justice requires the victim, the offender, and the community searching for solutions,
which “promote repair, reconciliation and reassurance.”112 Essentially, restorative justice centers
around the principle of creating a criminal restitution process that focuses on the needs of all
stakeholders, including the victim, the offender, and the community and seeking to heal, not
merely to punish the offender.113 Moreover, restorative justice can be used to foster mediated
dialogues between criminal offenders and their victims to encourage offender accountability,
victim forgiveness, and social reintegration for both parties.114 Restorative justice programs are
generally private community-based, church-based, or system-based.115 Community-based
programs comprise forty-three percent of restorative justice programs and are operated by nonprofit organizations, which recruit and train volunteers.116 Church-based programs account for
twenty-three percent of restorative justice programs.117 These programs use volunteers and may
be built on “biblical constructs of restoration, reconciliation and forgiveness.”118 Finally, system-
110
Zehr, supra note 107, at 179-81.
Zehr, supra note 107, at 179-81.
112
Zehr, supra note 107, at 179-81.
113
Daniel W. Van Ness & Pat Nolan, Legislating for Restorative Justice, 10 REGENT U. L. REV. 53, 53 (1998).
114
Zehr, supra note 107, at 179-81.
115
Katherine L. Joseph, Victim-Offender Mediation: What Social & Political Factors Will Affect Its Development,
11 OHIO ST. J. ON DISP. RESOL. 207, 209 (1996); Sheila D. Porter & David B. Ells, Mediation Meets the Criminal
Justice System, 23 U. COLO. L. REV. 2521, 2522 (1994) [hereinafter Porter & Ells].
116
Mark S. Umbreit & Jean Greenwood, NATIONAL SURVEY OF VICTIM-OFFENDER MEDIATION PROGRAMS
IN THE UNITED STATES 5 (2000) [hereinafter Umbreit & Greenwood].
117
Umbreit & Greenwood, supra note 116, at 5.
118
Porter & Ells, supra note 115, at 2522.
111
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Volume IV, Issue 3 p. 92 based programs are administered by correctional departments,119 police departments,120 or
prosecution offices121 and are operated by professional staff within one of these departments. 1) Victim offender mediation
Victim offender mediation is one of the most commonly used programs based on
restorative justice.122 It focuses on restitution and reconciliation through face-to-face meetings
between victims and offenders before trained mediators.123 Its goal is to provide a fair process in
which the discussion would facilitate an understanding of the crime and allow for negotiation of
restitution.124 These programs usually address property crimes, like vandalism and burglary, but
have also been utilized to address negligent homicide, armed robbery, and rape.125 In these types
of mediations, the victim, the offender, and a trained mediator discuss how the crime has affected
the victim’s life, the victim can express concerns and feelings, and the parties work out a
restitution agreement.126 Additionally, it supports healing by providing a safe environment in
which “the victim is able to tell the offender about the crime’s physical, emotional, and financial
impact and to receive answers to lingering questions about the crime and the offender.”127
119
Umbreit & Greenwood, supra note 116, at 6 (finding that probation programs are 18 percent, correctional facility
programs are 9 percent, and residential facilities are 2 percent of these programs).
120
Umbreit & Greenwood, supra note 116, at 6 (finding that police departments run 2 percent of these programs).
121
Umbreit & Greenwood, supra note 116, at 6 (finding that prosecuting attorneys’ office runs 5 percent of these
programs).
122
Mary Ellen Reimund, Mediation in Criminal Justice: A Restorative Approach, 46-May ADVOC. 22 (2003)
[hereinafter Reimund, Mediation].
123
Mark William Bakker, Repairing the Breach and Reconciling the Discordant: Mediation in the Criminal Justice
System, 72 N.C. L. REV. 1479, 1483-84 (1994) [hereinafter Bakker].
124
Bakker, supra note 123, at 1484.
125
Bakker, supra note 123, at 1485.
126
Leena Kurki, Incorporating Restorative and Community Justice into American Sentencing and Corrections, 3
SENTENCING & CORRECTIONS: ISSUES FOR THE 21st CENTURY 4 (1999) [hereinafter Kurki]. The parts of the meeting
are 1) Introductory opening statement by mediator; 2) Storytelling by victim and offender; 3) Clarification of facts
and sharing of feelings; 4) Reviewing victim losses and options for compensation; 5) Developing a written
restitution agreement; and 6) Closing Statement by mediator. See Mark S. Umbreit, MEDIATING INTERPERSONAL
CONFLICTS: A PATHWAY TO PEACE 143 (1995). See generally, Reimund, Mediation, supra note 122, at 22.
127
Restorative Justice Fact Sheet, COMMUNITY RESTORATIVE BOARDS (Jan. 26, 2015), available at
https://www.nttac.org/views/docs/jabg/balancedRestoreJustice/community_restorative_boards.pdf
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 93 Furthermore, during the mediation, the offender learns how the crime has affected the victim and
the offender has the opportunity to take responsibility for his or her behavior.128 2) Ad hoc mediation programs
Victim offender mediation is not the only form of restorative justice mediation used in
adult criminal cases. Other forms of restorative justice programs include community restorative
boards,129 victim-offender panels,130 victim assistance programs,131 community crime prevention
programs,132 sentencing circles,133 ex-offender assistance,134 community service,135 and
specialized courts.136 All of these ad hoc procedures are victim-centered programs in which
128
Id. at 11.
Community restorative boards are public face-to-face meeting between a small group of citizens and offenders.
See Kurki, supra note 126, at 1-2.
130
In victim-offender panels, a group of unrelated victims and offenders linked only by a common kind of crime, not
the particular crimes that involved the others, speak about their experiences. This discussion provides closure to the
victim and expose offenders to the harms that they have caused. Victim Offender Panels, PRISON FELLOWSHIP
INTERNATIONAL CENTRE FOR JUSTICE AND RECONCILIATION, available at
http://www.restorativejustice.org/university-classroom/01introduction/tutorial-introduction-to-restorativejustice/processes/panels.
131
Victim assistance programs are more service-oriented than compensatory in nature; they include crisis
intervention services, programs to assist victims acting as witnesses in criminal justice proceedings and programs to
aid victims in securing compensation benefits. See S. Rep. No. 497, 98th Cong., 2d Sess 4, reprinted in 1984 U.S.
Code Cong. & Admin. News 3607, 3616-17.
132
These are programs, such as community policing and neighborhood watches, in which the community and
community residents work with local government agencies to address issues contributing to crime. What Are
Community-Based Crime Prevention Programs?, BUREAU OF JUSTICE ASSISTANCE, available at
https://www.bja.gov/evaluation/program-crime-prevention/cbcp1.htm/.
133
Sentencing circles to talk out disputes in a culturally-relevant fashion by considering the context of the crime.
Gretchen Ulrich, Widening the Circle: Adapting Traditional Indian Dispute Resolution Methods to Implement
Alternative Dispute Resolution and Restorative Justice in Modern Communities, 20 HAMLINE J. PUB. L. & POL'Y
419, 420-432 (1999) (discussing the goals of restorative harmony of the Navajo Nation's peacemaking process
through the widespread use of dispute resolution methods and sentencing circles).
134
Ex-offenders programs are programs meant to reintegrate offenders into the community as productive and lawabiding members of that community. See generally PINELLAS EX-OFFENDER RE-ENTRY COALITION, available at
http://www.exoffender.org/.
135
Programs that require offenders to perform community services or to work for agencies in the sentencing
jurisdiction either entirely or partly in lieu of other judicial remedies and sanctions, such as incarceration or fines.
Court Ordered Community Service, FINDLAW, available at http://criminal.findlaw.com/criminal-procedure/courtordered-community-service.html.
136
Specialized courts differ from traditional courts because these courts focus on one type of offense or offender.
Usually the judge plays an intensive supervisory role. Other criminal justice components (e.g., probation) and social
services agencies (e.g., drug treatment) are involved and collaborate closely in case processing. Specialized Courts,
CLARK COUNTY DISTRICT COURT, available at http://www.clark.wa.gov/courts/district/specialized.html.
129
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 94 victims have a dominant role in the healing process.137 These procedures occur at various stages
of the criminal process and all can diverge from or parallel the court process;138 for instance,
community restorative boards, which are composed of a small group of citizens trained to
conduct public face-to-face meetings with offenders.139 This process has been successfully used
with non-violent offenders. In fact, community restorative boards have been used to combat nonviolent offenses since 1995 in Vermont.140 Non-violent offenders on probation discuss the
offense and its negative consequences with the community board.141 During the discussion, a
plan is set up regarding actions the offender will take to remedy his or her crimes within a
specific time.142 After agreement upon a plan and its implementation, the board monitors
compliance with the plan, which usually includes restitution, community service, counseling, or
therapy.143 The Vermont community restorative board program has won an Innovations in
American Government award, which is sponsored by the Ford Foundation and Harvard
University, saved Vermont citizens money, and follow up studies of participants “demonstrate
greater accountability, greater understanding of the harm caused to victims and communities by
wrongdoing, increased repair of the harm done, and greater success in reintegrating offenders
into the community.”144 137
Bakker, supra note 123, at 1488.
Bruce P. Archibald, Let My People Go: Human Capital Investment and Community Capacity Building via
Meta/Regulation in a Deliberative Democracy-A Modest Contribution for Criminal Law and Restorative Justice, 16
CARDOZO J. INT'L & COMP. L. 1, 39-53 (2008).
139
Kurki, supra note 126, at 1-2.
140
Gordon Bazemore & Curt Taylor Griffiths, Conferences, Circles, Boards, and Mediations: The “New Wave” of
Community Justice Decisionmaking, 61 FED. PROBATION 25, 27 (1997).
141
Id.
142
Restorative Justice Fact Sheet, supra note 127, at 13.
143
Kurki, supra note 126, at 6.
144
Ron Cohen, Forgiveness and Restorative Justice in Vermont, PLANET VERMONT QUARTERLY: A JOURNAL OF
EARTH, SPIRIT, AND HEALING, available at http://planetvermont.com/pvq/v8n4/justice.html.
138
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 95 Despite the above successful mediation programs, many critics express concerns over
mediation’s usage in adult criminal cases. Specifically, these critics argue that criminal
mediation perpetuate and exacerbate power imbalances between victims and offenders,145 have
unsettling constitutional implications,146 potentially violate separation of power considerations
when the programs are operated inside a prosecutor’s office,147 and inappropriately privatize
public justice.148 Specifically, they argue that criminal mediation violates the defendant’s
constitutional right to confront witnesses accusing the defendant, to adequate and competent
counsel, and to not incriminate himself or herself by requiring the offender to participate in the
mediation and not inviting the offender’s attorney to attend the session.149 The overarching
concern is that the offender may be taken advantage of by the system if his or her attorney is not
present to ensure that all protocols are followed. Similarly, there is the concern that what is
discussed in mediation may be used against the defendant at trial if the mediation fails to reach a
resolution. However, the latter criticism is moot because what is discussed in mediation is
completely confidential. The government cannot use the defendant participating in an
unsuccessful plea bargaining against the defendant nor can it use anything that the defendant said
145
Jennifer Gerarda Brown, The Use of Mediation to Resolve Criminal Cases: A Procedural Critique, 43 EMORY L.
J. 1247, 1271-72 (1994) [hereinafter Brown, Mediation] (noting that in victim offender mediation programs, the
inexperienced wrongdoer is frequently a first time offending juvenile who often lacks the experience and the
information about the criminal justice system that might increase their bargaining power); Terenia Urban Guill,
Comment, A Framework for Understanding and Using ADR, 71 TUL. L. REV. 1313, 1329 (1997) (“On the one hand,
a prisoner may be coerced into participation through the specter of doing poorly in a jury trial. On the other hand,
the victim also may feel coerced into participating in mediation by the uncertainty of a jury trial or pressure from a
state official.”) [hereinafter Guill].
146
Reimund, Restorative Justice, supra note 106, at 16-44 (discussing the constitutional implications of restorative
justice and concluding that “[r]estorative justice is not on a collision course with the constitution.”); but see Brown,
Mediation, supra note 145, at 1287-91 (including the Fifth Amendment right against self-incrimination and the Sixth
Amendment right to counsel, particularly in jeopardy in victim offender mediation programs where offender’s
attorney is not invited to attend).
147
See Guill, supra 145, at 1330 (suggesting that when victim offender mediation programs are run out of the
prosecutor's office, they can eliminate the judicial branch from the determination of guilt).
148
See Jennifer Gerarda Brown, Blackmail as Private Justice, 141 U. PA. L. REV. 1935, 1968 (1993) [hereinafter
Brown, Blackmail].
149
Brown, Mediation, supra note 145, at 1287-91.
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Volume IV, Issue 3 p. 96 during plea bargaining as evidence of the defendant's guilt. In the alternative, the defendant
cannot use anything that is said during plea bargaining as evidence in at trial. For example, if the
victim stated that he or she forgave the defendant, the defendant cannot use that statement in any
way in court. Moreover, more frequent usage of criminal mediation would potentially decrease
power imbalances between victims and offenders or between the offender and the government by
allowing all parties to be involved in the solution. For instance, if fifty percent of criminal cases
were mediated and seventy-five percent of those cases were resolved, then the criminal cases
would be decreased, which would provide all the parties with the opportunity to be part of the
resolution of the legal dispute while promoting judicial efficiency. Furthermore, many of the
other concerns can be alleviated by simply requiring the offender’s attorney to be part of the
mediation and having the mediator emphasize to the parties that mediation is confidential and
discussions within it cannot be used by either party against the other party in court. Finally, these
concerns can easily be eliminated by enacting a statute requiring that everything that happens
during a criminal mediation session is confidential and failure to comply with this statute would
result in a penalty of a fine, imprisonment, or both. 3. Arbitration
Arbitration has not been embraced in the way that negotiation and mediation have been in
the criminal context. Arbitration is a legal alternative to litigation in which the parties to a
dispute agree to submit their respective positions through agreement or hearing to a neutral third
party for resolution.150 There are two types of arbitration: binding arbitration and nonbinding
arbitration. Binding arbitration means that the parties in the dispute must abide by a third party’s
150
Jay Folberg, Dwight Golann, Thomas J. Stipanowich & Lisa Kloppenberg, RESOLVING DISPUTES: THEORY,
PRACTICE, AND LAW 537 (2nd ed. 2010) [hereinafter Folberg].
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 97 judgment to settle a dispute between the parties. Nonbinding arbitration is when the arbitrator
makes a determination of the rights of the parties to the dispute, but this determination is not
binding upon them and no enforceable arbitration award is issued. In the civil context,151 per the
arbitration clause, the parties usually have input on the selection of the neutral party. For
instance, each party may pick a neutral and the two neutral parties pick a third neutral, who will
help arbitrate the civil matter with the other two neutral parties.152 In contrast, arbitration would
be much more complicated in criminal cases. In the criminal context, arbitration would work by
having a neutral third party determine whether the defendant is guilty of committing the crime
that he is accused of. However, considering the potential consequences, the arbitrator in a
criminal matter would need to meet certain qualifications. For example, retired criminal judges,
criminal defense attorneys, or retired prosecutors would meet these qualifications because they
all have experience in adjudicating criminal matters. The two glaring issues with using
arbitration in criminal cases are privatization of justice and inconsistent judgments against
similarly situated criminal defendants. a. Privatization of justice
Binding criminal arbitration would amount to the privatization of justice. First, the
criminal defendant has a constitutional right to a fair and speedy public trial.153 Arbitration
would essentially deny the defendant this right. Unlike civil disputes, criminal defendants’ life
and liberty are in jeopardy, which is one of the reasons why the Constitution explicitly grants
them the right to a public trial. While the defendant can knowingly and voluntarily waive this
151
Arbitration is regularly used in the civil context. In fact, the Financial Industry Regulatory Authority reports that
23% of civil cases were resolved by arbitration in 2014.,Dispute Resolution Statistics, FINANCIAL INDUSTRY
REGULATORY AUTHORITY, available at http://www.finra.org/ArbitrationAndMediation/FINRADisputeResolution/
AdditionalResources/Statistics/ (last visited Mar. 4, 2015).
152
Folberg, supra note 150, at 580.
153
U.S. CONST. amend. VI.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 98 right, the government cannot deny this right,154 which is what would happen if defendants were
required to enter into binding arbitration. This concern could be addressed by having the
defendant participate in non-binding arbitration and then have a criminal judge determine
whether to accept the arbitrator’s judgement. Second, considering what is at stake, the neutral
party would need to be someone who is qualified to competently adjudicate criminal matters.
The neutral party should be competent to practice criminal law and understand how criminal
statutes are interpreted differently from civil statutes. This issue could be addressed by requiring
that a criminal arbitrator be a criminal defense attorney or retired prosecutor with at least five
years of criminal litigation experience or a former criminal judge. However, this still would not
address the relevant concern for consistent criminal judgements against similarly situated
defendants. b. Inconsistent criminal judgments
A huge issue with using binding arbitration in criminal settings is that, generally, an
arbitrator’s judgement cannot be appealed due to the arbitrator making a mistake in fact or
mistake in law. Arbitrators are bound by the scope of arbitration, which is usually defined in the
contractual language of an arbitration clause to which affected parties agree. Arbitration
judgements usually cannot be appealed unless the arbitration clause states that it is non-binding
or that the arbitrator went outside the scope of arbitration.155 This is very problematic in the
criminal context. In criminal cases, the law must be applied consistently to all criminal
defendants and any ambiguity in a criminal statute should be resolved in favor of the criminal
154
Brady, 397 U.S. at 750 (upholding constitutionality of plea agreements when the criminal defendant knowingly
and voluntarily pled guilty); see also Blank, supra note 82, at 2016.
155
Folberg, supra note 150, at 537-741.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 99 defendant.156 Therefore, allowing an arbitrator’s mistake in law to stand would undermine this
consistency, violate the criminal defendant’s constitutional rights to due process, and
compromise the integrity of the American criminal justice system by allowing multiple
subjective standards instead of using a universal objective standard for all similarly situated
criminal defendants. III. CONSTITUTIONALITY IN A CRIMINAL CASE 1. Right to a speedy public trial
One of the main constitutional concerns is that criminal ADR denies criminal defendants
the right to a fair and speedy public trial. Critics claim that it would be impossible for ADR’s
private focus to adequately fulfill the court’s social function without confronting social realities
and root causes of race, class, and gender discrimination.157 These criticisms revolve around the
idea that the conviction of criminal actions belongs to the state, not the victim, making it
fundamental that criminal law be enforced publicly with full constitutional protections and
opportunity for public input and oversight, rather than through private dispute resolution
mechanisms.158 Critics have also argued that ADR advocates have naively painted settlement as
a perfect substitute for judgment by trivializing the remedial role of lawsuits and privatizing
disputes at the cost of public justice.159 Among those favoring the courts’ role in affirming public
values through adjudication, ADR is criticized as highly individualistic and inadequate to public
156
United States v. Bass, 404 U.S. 336, 347- 50 (1971); United States v. Santos, 553 U.S. 507, 515-20 (2008)
(explaining that the rule of lenity requires that a criminal statute’s ambiguity must be interpreted in the defendant’s
favor).
157
Owen M. Fiss, Against Settlement, 93 YALE L.J. 1085-89 (1984) [hereinafter Fiss]; Laura Nader, Controlling
Processes in the Practice of Law: Hierarchy and Pacification in the Movement to Reform Dispute Ideology, 9 OHIO
ST. J. ON DISP. RESOL. 1, 10-11 (1993).
158
Brown, Blackmail, supra note 148, at 1968-69.
159
Fiss, supra note 157, at 1073-85; Susan Sturm, Equality and the Forms of Justice, 58 U. MIAMI L. REV. 51, 51-2
(2003).
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 100 purposes because it removes the “passive umpire” judge from the resolution process and
virtually eliminates the role of important public norms and individual rights in favor of a purely
private dispute resolution.160 Critics further argue that ADR’s downfalls include an increase in
the imbalance of power, lack of continuing judicial involvement, and absence of authoritative
consent.161 This criticism centers around the concept that ADR eliminates the social function of
lawsuits because, while peace between the parties might be achieved, society is left without a
remedy.162Essentially, by removing disputes from public forums, ADR deprives courts, as
reactionary institutions, of the chance to create justice, educate society, and fulfill the
government’s social duty.163 Moreover, settlement eliminates the publicity principle at the center
of a democratic republic by merely publicizing the terms of the settlement without explaining
how any of these terms were reached, reasserting public norms, or recognizing underlying moral
responsibility.164 Furthermore, critics allege that ADR is incapable of communicating public
norms precisely because its primary focus is facilitating settlement and creating a dialogue
between the parties instead of addressing legal rights.165 Therefore, opponents claim that ADR’s
ascendency threatens the decline of public law and the protections of public institutions.166
However, all of the above concerns can be addressed by having the criminal mediator or
arbitrator generate a recommendation, which would have to be approved by a criminal judge at a
160
Owen M. Fiss, THE LAW AS IT COULD BE 10-15 (New York University Press, 2003).
Fiss, supra note 157, at 1076-89.
Fiss, supra note 157, at 1085.
163
Fiss, supra note 157, at 1085.
164
David Luban, Settlements and the Erosion of the Public Realm, 83 GEO. L.J. 2619, 2648 (1995); Carrie MenkelMeadow, For and Against Settlement: Uses and Abuses of the Mandatory Settlement Conference, 33 UCLA L. REV.
485, 489, 497-98 (1985); Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374, 396-97 (1982) (suggesting that
settlement slows the process).
165
Christine B. Harrington, Shadow Justice: The Ideology and Institutionalization of Alternatives to Court 73-74
(Greenwood Press, 1985) (“In the alternatives movement legal resources are not rights, they are institutions to
facilitate negotiation and mediation.”).
166
Fiss, supra note 157, at 1085-89 (suggesting that ADR infringes on the court’s ability to vindicate constitutional
ideals).
161
162
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 101 court hearing before it was effective against the defendant. Specifically. nonbinding criminal
arbitration would potentially allow for criminal defendants to have a fair and speedy trial because
a judge would review the arbitrator’s recommendation to ensure compliance with criminal law
and procedure, which would promote society’s best interests and protect criminal defendants’
constitutional rights by having a second third party review the evidence on the record. 2. Rights of competent counsel, to confront witnesses, and against self-incrimination
Other constitutional concerns regarding criminal ADR are that it denies the right of
competent counsel, the right to confront witnesses, and the right against self-incrimination to the
defendant. The criminal defense attorney’s role is premised on the distinction found in the
Constitution between lawyers representing defendants in criminal cases and those representing
other clients.167 Defense lawyers serve fundamental functions essential to an adversarial criminal
justice system by providing guarantees that the system operates properly so that the defendant
receives a fair trial.168 One of the essential duties of a defense attorney is to “utilize an intricate
system of checks and limits on behalf of his client and against the government.”169 Additionally,
criminal ADR allegedly would prevent the defendant from being able to exercise his or her
constitutional right to confront witnesses. Finally, critics express concern that requiring criminal
defendants to participate in criminal ADR would violate their constitutional right against selfincrimination because there is fear that what the defendant says in mediation or arbitration may
be used against him or her in court. 167
Gideon v. Wainwright, 372 U.S. 335 (1963) (Sixth Amendment guarantees the accused the right to the assistance
of counsel in all criminal prosecutions and counsel is provided for defendants unable to employ counsel unless the
defendant competently and intelligently waived this right).
168
Morgan Cloud, Forfeiting Defense Attorneys' Fees: Applying an Institutional Role Theory to Define Individual
Constitutional Rights, 187 WIS. L. REV. 1, 1-3 (1987).
169
Id. at 12.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 102 However, the concern regarding the lack of competent counsel is resolved by requiring
the defense attorney to be present at all criminal ADR sessions or requiring the defendant to be
reminded of his or her right to have counsel during criminal ADR sessions. Similar to traditional
criminal proceedings, as long as the defendant is aware of his or her right to counsel, the
defendant can waive or invoke the right at any time during criminal ADR sessions. For instance,
a defendant who has previously waived his or her right to counsel can still invoke this right at a
later time by requesting an attorney. Likewise, a defendant who has invoked his or her right to
counsel can later voluntarily waive this right. Moreover, the concern regarding inability to
confront witnesses can be addressed by including the witnesses in the sessions and allowing
counsel to ask the witnesses questions with the criminal mediator or arbitrator present. However,
criminal defendants commonly waive the right to confrontation of witnesses when they
participate in plea bargaining and accept a plea agreement. Additionally, the concern of potential
self-incrimination can be addressed by explaining to all parties that everything within the
criminal ADR session is confidential and may not be used against either party in court. In plea
agreements, the defendant self incriminates himself or herself unless the defendant enters an
Alford plea.170 Furthermore, the mediator or arbitrator could require everyone to sign a
confidentiality agreement regarding the criminal ADR sessions. Finally, all of above concerns
may be alleviated if criminal ADR was optional instead of mandatory, because the government
cannot deprive criminal defendants of their constitutional rights, but criminal defendants are able
to voluntarily waive these rights. CONCLUSION 170
See North Carolina v. Alford, 400 U.S. 25 (1970) (explaining that an Alford plea is essentially a guilty plea
coupled with a claim of innocence).
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 103 ADR promises a more accessible, harmonious, and efficient form of justice through
which parties could maintain control while dealing with conflict. While ADR has proven to be an
efficient and preferred manner in which to resolve civil disputes, it has not received this same
level of acceptance or usage in criminal cases. However, that is beginning to change. Notably,
despite an increase in federal civil and criminal filings, there has been a steady decline in bench
and jury trials.171 In fact, since 2003, scholars have noted that less than two percent of cases end
in a trial.172 In recent decades, ADR within criminal cases has increased in the form of plea
bargaining, victim offender mediation, and various restorative justice programs. While plea
bargaining is the most widely and accepted use of ADR in the criminal context, many restorative
justice programs are being implemented with great success in criminal cases. Restorative justice
programs are prevalent in juvenile criminal cases because these programs have been able to
efficiently fulfill the juvenile justice system’s underlying goal of rehabilitation of youthful
offenders. However, these same programs are not always a great fit for adult criminal cases
because the underlying philosophy of the adult criminal justice system seeks to punish, not
rehabilitate adult offenders. Restorative programs seem to work best with nonviolent adult
offenders who are more likely to be successfully rehabilitated. However, such programs may be
useful for generating recommendations to criminal judges concerning how to deal with both
nonviolent and violent adult offenders. In contrast with plea bargaining, criminal mediation, and
nonbinding criminal arbitration, binding criminal arbitration is not an advisable option for
American criminal adult cases because criminal statutes must be consistently interpreted and
171
Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts,
1 J. EMPIRICAL LEGAL STUD. 3, 459-570 (Nov. 2004), available at
http://epstein.wustl.edu/research/courses.judpol.Galanter.pdf.
172
Patricia Lee Refo, Opening Statement: The Vanishing Trial, 30 A.B.A. SEC. LITIG. 1 (2004), available at
http://www.americanbar.org/content/dam/aba/publishing/litigation_journal/04winter_openingstatement.authcheckda
m.pdf.
Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 104 applied to all similarly situated defendants. The binding criminal arbitration would likely have to
be transformed into a criminal trial with all the safeguards used at trial in order to avoid violating
the defendant’s constitutional rights. In the end, it would most likely be more efficient to hold the
actual trial instead of sending the defendant through binding criminal arbitration. In contrast,
nonbinding criminal arbitration would promote judicial efficiency by narrowing matters that
need to be adjudicated and generating recommendations for a criminal judge to consider. In
conclusion, while criminal arbitration is not constitutional and efficient, plea bargaining, criminal
mediation, and restorative justice programs are constitutional and efficient because these forms
of criminal ADR meet society’s needs without sacrificing the defendant’s constitutional rights. Resolved: Journal of Alternative Dispute Resolution
Volume IV, Issue 3 p. 105