For example, suppose a mediator mediates a dispute between parties to a satisfactory conclusion on all but one issue. Thereafter, the parties ask that mediator to resolve the final dispute as an arbitrator. At present, there is no general standard in Washington law as to ADR process rules. While confidentiality is a valuable attribute of ADR for some, I am concerned that the continuing development of common law, based on stare decisis, will wither away with the increase in essentially nonappealable ADR results. Finally, the relationship of ADR to our traditional civil justice system is poorly articulated in Washington law.
Judges are foreclosed, for example, from requiring the parties to mediate child support disputes.
Indeed, perhaps judges should more often invoke ADR in the criminal context. 9 Chief Justice Guy has asked Justice Barbara Madsen to study this possibility. With respect to fairness, a number of questions arise. Due process standards have been advocated by a number of organizations in the consumer context. In particular, the American Arbitration Association has developed a consumer due process protocol that may serve as a model for how due process standards should apply in the consumer context.