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By Kathy Roberts Forde Spring 99 Duke Law Magazine Housed on the second floor of a gray-shingled, turn-of-the-century house that faces Durham's Main Street, Duke's Private Adjudication Center (PAC) has no sign proclaiming its presence to passersby. Yet despite its local modesty, the Center commands a national, even international, reputation in legal circles for its touchstone work in establishing and defining the field of alternative dispute resolution-a progressive alternative, grounded in traditional judicial principles, to conventional civil dispute resolution. In the early 1970's, the A. H. Robins Company manufactured and distributed the Dalkon Shield intrauterine device, a contraceptive alleged to have caused sterility and serious illness in many users. Robins declared bankruptcy, and the court authorized the establishment of a trust and a concomitant claims resolution process, whereby claimants could submit applications for monetary restitution. If a claimant rejected the trust's offer, she could select arbitration or litigation. And that's where the PAC, with its Dalkon arbitration programs, comes into focus. PAC Executive Director René Stemple Ellis '86 suggests that one of the substantial benefits of ADR over litigation, both for the individual and the court system, is the speed and economy with which a claim can be administrated, particularly in the context of mass torts. In many cases, a claimant's hearing could be as brief as two and a half hours. "We were able to schedule them two or three per day, sometimes back-to-back, depending on where they were," Ellis explains. "They would be heard to full resolution. And there's just no way you could do that in a traditional system." The PAC trained its Dalkon referees and arbitrators, using its own staff as well as experts from Duke Medical Center and the Centers for Disease Control, not only in the particulars of the established arbitration programs but also in the relevant medical knowledge of obstetrics, gynecology and epidemiology. From 1991 to 1997, the PAC administered over 6,000 arbitrations across the nation for the Dalkon Shield Claimants Trust, providing a day in the court for many claimants whose cases, in the traditional court system, might otherwise have dragged on much longer. It is precisely this quality of alternative dispute resolution-its capacity to give voice to a broad array of people, especially in complex cases, class actions and mass torts-which many proponents cite as its greatest benefit. As the Center's literature explains, the quality of its dispute resolution programs mirrors the high quality of its panel of neutrals: those mediators, arbitrators, and special masters who mediate negotiations or adjudicate claims. Carol Liebman, clinical professor of law a Columbia University School of Law, specializes in negotiation and mediation issues and has worked as a neutral for the PAC. Liebman describes the PAC's work, particularly in its administration of programs and support of neutrals, as "dependable and responsive." Liebman also says that those who work at the PAC practice what they teach when they train others in conflict resolution skills in seminars for students and legal professionals. Year after year, the small staff of the PAC accomplishes staggering amounts of work and has amassed, as Ellis points out, "more experience administering ADR in complex cases, particularly in mass torts and class actions, than any other ADR provided in the country." Dalkon Shield, Piper Aircraft, Fibreboard, Smith Barney, Silicone Gel Breast Implants: these are just some of the dispute resolution programs the Center has designed and administered. During his tenure as dean of Duke Law School from 1978 to 1988, Professor Paul Carrington was a key figure in the launch of the PAC and is still involved with the Center's mission. As the action chair of the PAC board, Carrington is working to establish a registry of independent experts in science and technology to advise judges, lawyers, and clients. Currently, no such independent advisory group exists to assist trial judges in evaluation the scientific in a case, and as Professor Carrington asserts, "There are a lot of lawsuits that are won or settled on the basis of very questionable scientific opinion." In many cases, expert witnesses employed to both plaintiff and defendant provide conflicting scientific testimony, thus leaving the judge to determine, perhaps with little substantive and relevant scientific knowledge, the truth of the evidence. Both judges and lawyers in trial situations historically have been reluctant to use independent experts. It is this very stumbling block, coupled with the experience in the PAC's use of independent scientific testimony in the Dalkon Shield cases, that led Carrington to imagine a different application for the registry: while disinterested witnesses may be difficult to integrate into the adversarial nature of the courtroom, they may well be an excellent resource in mediation and arbitration. The PAC recently received a grant from the Smith Richardson Foundation to help build the registry. Focusing its initial efforts on health care issues, the PAC plans to build a database of disinterested experts using the expertise in Duke's Medical Center and other specialty groups such as the College of Surgeons. Attorney Corinne Houpt, who is currently administrating claims in the Center's Silicone Gel Breast Implant Individual Settlement Program, will serve as director of the registry project. In addition to developing the registry project, the PAC sponsors an array of educational opportunities to train students, lawyers, and judges in conflict resolution. In a joint venture with the Durham Dispute Settlement Center, the Law Student Mediation Program in 1997 trained 35 area law students-from Duke, North Carolina Central University, and the University of North Carolina at Chapel Hill-as mediators, Program participants mediate small claims cases in Durham County, at first with the assistance of experienced mediators and later on their own. In the past decade, providing law students with clinical experience has become a central goal of top-notch legal educations. Teaching conflict resolution skills-as Duke Law Professors Neil Vidmar, Tom Metzloff, and René Stemple Ellis do in their popular courses in negotiation and dispute resolution-has also become de rigeur in more progressive law schools. The PAC's Student Mediation Program, co-sponsored by the Law School's pro bono project, provides students with both clinical experience and negotiation skills, an experience that is often difficult for law students to obtain, according to Ellis. Jim Bingham, a Duke Law student who has recently participated in the program, praises the far-reaching benefits of his training: "The skills I have been taught through the program will benefit me throughout my career-not just in mediations or law-related work. The ability to resolve disputes effectively serves all facets of life." In 1997, the Law School hired Professor Francis McGovern, an internationally known trailblazer in the field of alternative dispute resolution, to augment its already substantive faculty expertise in the field. McGovern is regarded by many as the father of ADR, having conceptualized theories and designed programs in the field since its nascent stages in the late 1970s. McGovern's career has focused on mass claim litigation arising from product liability issues and major disaster, and in this context, he has been appointed as special master in many mass tort cases. McGovern has been closely involved with the PAC and developed the Center's Dispute Resolution Forum lectures on negotiation, held in 1997 and 1998. He is in the process of creating an Internet journal, which will be the electronic counterpart to the lecture series. Targeting an emerging topic in the field of ADR every month, the journal will take the form of short articles written by national leaders in the field, followed by on-line discussions among invited participants who will include judges, lawyers and academics committed to ADR. Through it's pioneering work in alternative dispute resolution, the PAC has changed the way many lawyers, judges, and claimants conceive of their roles in a legal dispute. And the work is ongoing. In its own quiet way the PAC is transforming the legal landscape.
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