Managerial Litigants?: The Overlooked Problem of Party Autonomy in Dispute Resolution

Abstract This article focuses on the cornerstone of dispute resolution (DR) processes, party consent. In general, parties are free (on a shared consent basis) to shape the DR processes they employ to suit their perceived needs. When disputants request that courts use dispute resolution tools, courts have, for the most part, adopted this precept, willingly accepting efforts by “managerial litigants” to shape the processes used to decide their disputes. The question of whether, and to what extent, this type of litigant control over the dispute resolution process in the judicial setting is appropriate, however, has been largely ignored. The article addresses that question and concludes that party consent does not provide sufficient protection against the threat to courts’ institutional integrity that nontraditional requests for judicial action might present. The article suggests a two-prong test courts should implement when analyzing such requests in the future. First, the court must consider whether Congress granted it the authority to approve the parties’ request. Second, the court must explicitly consider whether approval of the parties’ request will undermine the institutional integrity of the courts. Application of this test to the variety of requests parties are making both within and outside the ADR context will allow courts to create a standardized framework for evaluating party requests while, at the same time, ensuring that the court’s integrity as an institution is maintained.