With the fast approaching end of the United States Supreme Court’s 2015-2016 term, the Supreme Court has been (and will be) issuing a flurry of decisions. One of them caught my attention because unlike all of its other decisions, it did not decide the matter but rather suggested engaging in alternative dispute resolution (ADR).

In Zubik v.  Burwell, Case Nos. 14-1418, 14-1453, 14,1505, 15-35, 15-105- 15-119 and 15-119, the Court issued a per curiam opinion on May 16, 2016  (578 U. S. —- (2016) (Slip Opinion) )  ( 14-1418_8758) vacating the judgments of the lower courts and remanding these cases back to the respective appellate courts to give the parties the opportunity to put their heads together and come up with a compromise.

As set out in the per curiam opinion, the petitioners are mainly nonprofit organizations that provide health insurance to their employees. Pursuant to certain federal regulations enacted under the Patient Protection and Affordable Care Act (aka Affordable Care Act or Obamacare), they must provide certain contraceptive coverage unless they submit a form stating that they object on religious grounds.  Petitioners objected to providing such a form believing it burdens their exercise of the religion under the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U. S. C. § 2000bb et.seq.   (Slip Opinion at 3.)

Following oral argument, the Court requested additional briefs on the issue of whether such coverage could be provided without requiring any notice from petitioners. Both the petitioners and the Government advised that this would be possible. Petitioners advised that if all they had to do was to contract for an insurance plan that “ …does not include coverage for some or all forms of contraception “even if their employees receive cost-free contraceptive coverage from the same insurance company”” (Id.), then their religious freedom would not be at issue. (Id.)

Based on this supplemental briefing, the Court vacated the judgments, and remanded the matter back to the several appellate courts, so that the parties could

 …be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage.” Id., at 1. We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them. (Id. at 4.)

I strongly suspect that the reason that the Court remanded with instructions to implement an ADR (mediated?) approach is that with the passing of Justice Scalia on February 13, 2016 and the refusal of Congress to proceed with confirmation hearings on President Obama’s nominee Judge Merrick Garland to fill that vacancy, the Court (like Congress versus President over Judge Garland’s nomination) found itself at an impasse– a 4-4 split. This would result in an affirmance of the appellate decisions. Not desiring such a result, the Court (surprisingly!) implemented some “outside the box “thinking and suggested the use of ADR to resolve the issue. As a mediator, I applaud the Court for  remanding for a compromise resolution of this thorny issue. The Court should suggest this approach more often.

So. in certain instances, impasse begets a necessity which begets creative and inventive thinking which begets an ADR innovation, if not resolution! ( Simply put, Necessity is the Mother of Invention!) So..,. the next time an impasse occurs, be creative and think “outside the box.”!

… Just something to think about.




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