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arbitration is more formal and adversarial than mediation, it is
less time-consuming and expensive than litigation.^226 Since many
state-court-connected and private arbitration programs exist,
Targets should have the opportunity to utilize these programs.
A. Arbitration Programs Offered by State Courts or
Nonprofit OrganizationsSome state courts have a court-connected ADR scheme that
includes mediation and arbitration programs.^227 Court-connected
arbitration programs vary from state to state.^228 Many state
statutes, however, mandate court-connected arbitration for
certain types of cases, such as family law matters and civil
actions involving claims for damages valued at less than
$50,000.^229 Mandatory court-connected arbitration is intended to
reduce litigation costs and mitigate docket crowding.^230 In some
states, the judge or the parties must choose a lawyer to arbitrate
the case.^231 After the arbitration hearing, the arbitrator will issue
supra note 166, at 296–304 (“Congress has promulgated substantive
employment laws and the federal court has developed its common law, which
supports arbitration as not only an alternative to litigation, but as a legitimate
means of resolving employment-related disputes outside of the litigation
context.”).
(^226) For further discussion of the benefits of arbitration, see infra Part
V.B.
(^227) Barbara McAdoo & Nancy Welsh, Court-Connected General Civil
ADR Programs: Aiming for Institutionalization, Efficient Resolution and the
Experience of Justice, in ADR HANDBOOK FOR JUDGES 1, 1 (Donna Stienstra
& Susan Yates eds., 2004), available at http://ssrn.com/abstract=1726213.
(^228) Id.
(^229) See, e.g., NEV. REV. STAT. § 38.250 (2012); OR. REV. STAT.
§ 36.400 (2011); CAL. CIV. PROC. CODE § 1141.11(a) (West 2007); 42 PA.
CONS. STAT. § 7361 (2013). However, New York County’s mandatory
arbitration program requires all claims seeking damages in an amount up to
$10,000 first be decided by an arbitrator. FERN A. FISHER, CIVIL COURT OF
THE CITY OF N.Y., HOW TO TRY OR DEFEND A CIVIL CASE WHEN YOU
DON’T HAVE A LAWYER 12 (Nov. 2005), available at http://www.courts.
state.ny.us/publications/guideforproses.pdf.
(^230) See Mandatory Arbitration, OR. STATE BAR (Aug. 2009),
http://www.osbar.org/public/legalinfo/1216_MandatoryArbitration.htm.
(^231) See id. In the Washington Superior Courts, “the parties may select an