The contributors to this excellent symposium on the Future of Legal Education have proposed large-scale changes to the ways that law schools are organized and the ways that law schools teach. My suggestion is more humble: Schools must do a better job of reflecting the dramatically heightened place of arbitration and mediation in modern legal practice.

Arbitration and mediation have traditionally been viewed as elective courses. Sometimes they are lumped together into a single course, called something like Alternative Dispute Resolution or ADR. The “alternative” moniker implies that these methods of conflict resolution stand in contrast to litigation, or somehow involve different types of disputes than the disputes that are litigated. Most curricula view them as optional complements to the “real” litigation courses like Civil Procedure, Evidence, Federal Courts, Conflict of Laws, and Remedies.

Anyone who has ever litigated knows that this is a fundamentally false framing. First, mediation and arbitration are no longer “alternatives.” They’ve been mainstreamed over the past several decades. And while frequency varies by practice area, most litigators are likely to spend a substantial amount of their time in non-judicial fora. Second, these processes can’t be lumped together into a single unit or class on “ADR.” They’re entirely distinct processes that are used for different reasons.

Let’s start with frequency. Mediation now occurs in almost every litigated commercial case as well as many non-commercial cases. Courts increasingly require it, and parties (including insurance companies) welcome it. It is a well-known statistic that some 95-98% of cases settle before trial, and many of those settlements occur via mediation. Arbitration, by contrast, generally occurs when the parties have a pre-dispute arbitration clause in their contract, or a post-dispute arbitration agreement. All data suggest that the number of arbitration filings continues to increase over time. The reasons for arbitration’s popularity include its relative speed, cost, and finality. Companies are increasingly placing binding arbitration clauses into consumer and employee contracts (and, for better or worse, courts largely uphold such clauses). Simply put, mediation and arbitration are central parts of our modern legal system.

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