On American Court-annexed Arbitration

Multicultural integration and conflict is the cultural identity of the United States, When adispute occurs, it is natural to be submitted to the Court, this is the social reasons of "litigationexplosion". To the Americans,this cultural diversity also become the social condition ofaccepting a pluralistic dispute-resolving machanism. The first Judicial ADR in the USA isCourt-annexed arbitration, known as the “Father of judicial ADR.” Compare to the traditionalarbitration, It is a disparate dispute resolution mechanism, which originated in the court,running on the court, and committed to the settlement of disputes under the shadow oflitigation.it is not a negation of traditional arbitration, to the contrary, it will extend thearbitration to the court system,and will be helpful to the litigation.In addition to the foreword, This thesis is divided into five chapters, the main contentsare as follows:The first chapter is the transmutation of court-annexed arbitration.The interactionbetween litigation and ADR gives birth to court-annexed arbitration,Pound Conferenceprovides the opportunity to it’s flourishment. In the federal legislation, by far the mostimportant development is the "Alternative Dispute Resolution Act of1998”. It has gonethrough three stages of development in terms of the practice of the U.S. Courts, the first stageof1970-1980, the U.S. federal courts tried the pilot of Arbitration for the first time; Thesecond stage of1990-2000,the U.S. courts make it as a part of case managemen; So far, court-annexed arbitration has become widely used in the U.S. Court of First Instance.The second chapter is the theoretical analysis of the U.S. court-annexed arbitration. Thecourt-annexed arbitration showed the wisdom of the judicial pragmatism. Judicial pragmatismis the core of the legal pragmatism, its emphasis on justice should be concerned about theconsequences, as well as based on the consequences of a tendency to make policy judgments.The legal pragmatism had a profound impact on the dispute-resolving theory of America.Arbitration can not only save the resources of the Court, but also resolve the disputs in thecontext of courts. Court-annexed arbitration, however, is subject to much criticism, thesecriticism is around the legitimacy of the court-annexed arbitration.At the same time,itpromotes the development of court-annexed arbitration.The third chapter is the operation procedures of court-annexed arbitration, this is a dynamic process of arbitration. Court-annexed arbitration process can be divided into threestages, in accordance with the start, expansion and the end. In the United States, it has twomodes of arbitration, voluntary and mandatory arbitration. The voluntary arbitration modealso can be divided into two modes, they are "opt-in" and "opt-out" modes. The mandatoryarbitration mode is divided into "forced into" and "judge-ordered into". The reason why theU.S. court use these two kinds of arbitration mode is from the legal pragmatism.The fourth chapter is the empirical study of the court-annexed arbitration. The studyfound that even in the pilot period of court-annexed arbitration, its program design also quiteconsummate, from general goals to specific objectives, from the types of cases to a specificarbitration process planning,each detail is very good. Court-annexed arbitration is not thesolution of overburdening. However, the research has shown that the arbitration program hasbeen carefully designed to better the litigation system and focus with the cooperation of otherparticipants in the justice system, it will certainly be a useful dispute-resolving tool. It justlike a "half-breed"of mediation and trial, and play the very import role in mordern dispute-resolving.The fifth chapter is the implications for China. Court-annexed arbitration is almost60years old now, you can see many intriguing essence from it. The essence is not in the designof the system itself, but internalized in arbitration program of U.S.courts. The court is not onlya civil dispute-processing field and the operation forum of the arbitration proceedings, butalso it carries a certain special mission, ambitious platform that provides litigation and non-litigation dispute-resolving mechanism for docking. This docking connotation is also a multi-level, its first reflected in the organization of the docking, the second level is reflected in thedocking of the workflow, the third level is reflected in the outcome of the arbitration. In thecourt-annexed arbitration,the courts thoroughly plays a procedural role. Since court-annexedarbitration’s creation, it enabled the elite lawyers who are neutral,and volunteers gratuitous actas arbitrators, and has continued ever since. Lawyer arbitrator is the core of the system ofcourt-annexed arbitration, the judge actually played a very limited role in it.