OHIO STATE JOURNAL ON DISPUTE RESOLUTION
!Vol. 27:2 2012]
that ADR scholars and practitioners deal with every day: multiple parties of
interest, strong fervor, high emotion, a focus on positions rather than
interests, and a need to define a process that will produce a result that all
sides will abide.
By disaggregating disputes that arise in elections, I hope to show that
there is room for value creation in election dispute resolution and that
mediation can help resolve election disputes more efficiently. Others have
written about mediating disputes that arise before elections,4 but common
wisdom has advised that "parties are unlikely to ... resolve post-election
disputes in mediation in light of the high stakes finger-pointing and the need
to certify the election results in a timely manner."5 This article takes issue
with that assumption, arguing that mediation could prove a useful tool to
address shortfalls inherent in post-election litigation.
This paper begins with a review of the current landscape with respect to
non-judicial resolution of election disputes, underscoring general acceptance
of the idea that court is not always the best place to resolve certain election
disputes. The following sections review the drawbacks of both mediation and
litigation in the post-election dispute context, concluding that both are in
their own ways fraught. With these shortcomings in mind, the next section
suggests that disaggregating post-election disputes into process disputes
versus outcome-determinative disputes reveals a role for mediation. The final
section tests this approach using the 2008 Minnesota senate recount as a case
study. The Minnesota recount provides an opportunity to retroactively
disaggregate post-election disputes, illustrating some of the greatest-and
perhaps most unanticipated-challenges posed. Although mediation might
not be right in all post-election disputes, the Minnesota example helps
unpack instances in which mediation could usefully play a part.
II. EXTRA-JUDICIAL PROCESSES IN ELECTION DISPUTES
Before advancing the theory that ADR, particularly mediation, could
improve dispute outcomes in the election context, this section reveals that
many jurisdictions already employ extra-judicial forms of dispute resolution
in U.S. elections. Out-of-court election dispute resolution mechanisms are in
place at both the federal and state level. This section will discuss four distinct
forms: statutory, administrative, legislative, and quasi-judicial.
4
See generally Erin Butcher-Lyden, Note, The Need for Mandatory Mediation and
Arbitration in Election Disputes, 25 OHIO ST. J. ON DISP. RESOL. 531 (2010) (arguing for
the adoption of a federal statute mandating mediation in pre-election disputes).
5 Jd. at 544.
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