Law governing enforcement of ADR agreement not governed by the Federal Arbitration Act (FAA) has been uncertain, and often aimless. This Article therefore calls for clarification of this law, through development of a modern contractual approach for enforcing these non-FAA ADR procedures. Although courts may look to the FAA as a resource for evaluating and developing an enforcement approach, they also should employ modern contract and remedy tools that are more adaptive than the Act's summary enforcement because it allow courts to consider contextual, relational, and equitable factors when determining application of specific enforcement remedies. This allows courts to apply these tools to foster contract compliance and cooperative relations, but to protect individuals from coerced participation in ADR that will cause undue financial or emotional hardship, or otherwise defeat the very purposes of ADR.
Amy J. Schmitz, Refreshing Contractual Analysis of Adr Agreements by Curing Bipolar Avoidance of Modern Common Law, 9 Harv. Negot. L. Rev. 1 (2004)