Judicial power includes the power (1) to resolve disputes, State Board of Education v. Honig, 13 Cal. App. 4th 720, 748 (1993), (2) to enforce the resolution of those disputes, Branson v. Sharp Healthcare, Inc.,193 Cal. App. 4th 1467, 1476 n.4 (2011) ("'The power to enforce their decrees is necessarily incident to the jurisdiction of courts.'"), and (3) "to say what the law is," Marbury v. Madison, 5 U.S. 137, 177 (1803).
With the rise of arbitration and mediation in the early 20th century, the courts arguably lost their exclusive monopoly. Both enable prospective litigants to mutually "opt out" of the courts' dispute resolution function in favor of having a "private judge" hear their dispute. Put differently, they ostensibly intrude upon the judiciary's monopoly over dispute resolution. Granite Rock Co. v. Int'l Bhd. Of Teamsters, 561 U.S. 287, 299 (2010). But they do not invade the courts' monopolies over (1) enforcing judgments or (2) proclaiming what the law is.The technology of the 21st century now presents a further threat to the courts' monopoly.
First, should the courts care? Is the emergence of more alternative dispute-resolution like having more entrees on a menu or more like having a sixth sushi restaurant on a block? More entrees is a good thing, but more restaurants could be bad news for one or more of the restauranteurs. Where, as here, one of the "restaurants" was created to serve the entire population, diners choosing to dine elsewhere may be a cause for concern.
Second, what, if anything, can and should the courts try to do? Is the solution to make lawyers more readily available to all litigants? Or to streamline court procedures to make them simpler for self-represented litigants, thereby leveling the playing field when one party has a lawyer and the other does not? Or to encourage the development of non-court alternatives that more closely approximate the fairness of dispute resolution proceedings in the courts?
And this published opinion today is a reminder: If your settlement agreement says that the trial court's determination "shall be final and nonappealable," then an appeal will be ... dismissed. "It is well-settled that a party may expressly waive it right to appeal ...."