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I. INTRODUCTION
It is impossible to generalize the impact of alternative dispute resolution
(ADR) on access to justice in America. Nationwide development in the field of
ADR has not been uniform. ADR has been utilized in different ways, in
different degrees, and in different places around the country. Large urban
areas have borne the brunt of the so-called litigation explosion. There, under
the pressure of case volume, a multitude of diversions from traditional
litigation has been created. In less populous communities, the need for
dispute resolution alternatives has been less pressing, so development has
been slower and more sporadic. Across the nation, however, we are told that
the justice revolution has come. The various forms of ADR are hailed as
panaceas for a variety of social, moral and administrative ills. From court
congestion, to criminal recidivism, to unpaid child support, to over-reaching
litigiousness, to psychologic dissatisfaction, supporters tell us that ADR holds
the solutions. It is tempting to accept these glowing claims uncritically, but to
do so sacrifices attention to the pitfalls of alternative dispute resolution which
may impair its ability to provide access to justice in America.
As an ADR professional who teaches the skills of mediation,
arbitration, facilitation and negotiation, and who practices these skills in the
private and public sectors, I have been involved with ADR both institutionally
and individually. Through my work, I have come to worry that ADR may
impair equal access to justice. My conclusion is that ADR may contribute to a
three-tiered system of justice: the economically and politically powerful
purchase the highest quality alternate dispute resolution; some are left to the
courts; and the poor, disadvantaged, and politically powerless are shunted off
to high volume, court-annexed dispute resolution alternatives. Each of the
tiers presents its own problems for access to justice.
IL CADILLAC JUSTICE - PRIVATE ADR
A number of imaginative dispute resolution alternatives have been
developed to assist in the settlement of complex commercial and high-stakes
litigation. These include mini-trials, where the disputants' lawyers, under the
supervision of a neutral advisor, present abbreviated evidence to the parties
to aid in settlement; private judging, where the disputants choose which
adjudicator will decide their case; mediation, where the disputants designate
a neutral to assist with settlement; and arbitration, where the disputants may
select both the third-party decision-makers and the structure of the
arbitration. These processes have been praised for their speed, their
flexibility, their financial and emotional savings, their party-selected
macro-political scale, we are warned that the informal nature of ADR inhibits
change by sacrificing the open airing of social and political grievances in order
because there is no right to receive legal advice before, during or after the
process. This may leave disadvantaied disputants ignorant about their rights
and options within the legal system. 8 The poor also lack the ability to access
the private dispute resolution mechanisms available at the top: the skilled
mediator who has no restrictions on time or issues, the outstanding
arbitrators with special expertise, the best retired judges to hear the case and
render a decision. Their only recourse is to accept whatever the system
directs them to use as a dispute resolution mechanism. Certainly, this does
not constitute equal access to justice.
V. CONCLUSION
At its best, ADR offers custom-made procedures, flexible, expeditious
processes, and disputants who are satisfied with both the method and the
result. At its worst, ADR damages the public functions of adjudication while
it oppresses and exploits the disadvantaged. As with most polarities, the
reality lies somewhere in between. Currently, our legal system is
overburdened and is not functioning well, resulting in substantial pressures
for efficiency and reform. ADR is, in some measure, a product of these
pressures. If we accept it uncritically as a speedy, economical solution, the
end results will be a mixed bag of mediocre alternatives which do not improve
access to justice but rather multiply the avenues to injustice. If, on the other
hand, we recognize that both formal adjudication and informal processes
urgently require greater resources, closer study, clearer organization and
better scrutiny of results, and if we move to meet these needs, we may indeed
increase access to justice rather than merely increasing access to disposition.
ENDNOTES
This paper was originally prepared for presentation at the ABA 1989
annual meeting.
**
Professor of Law, University of New Mexico School of Law.
1.
S. Goldberg, E. Green, & F. Sander, Dispute Resolution 285-290 (1986)
(hereinafter Goldberg).
2.
Raven, PrivateJudging:A Challenge to Public Justice, A.B.A. J., Sept. 1,
1988 at 8.
3.
Id.
4.
Fiss, Against Settlement, 93 Yale L. J. 1073, 1089 (1984).
5.
Id. at 1085.
6.
Resnick, FailingFaith:Acjudicative Procedure in Decline, 53 U. Chi. L.
Rev. 494 (1986), notes that "many defendants (and their attorneys) in
products liability and antitrust cases.., now seem intrigued by ADR as a
means for protecting themselves from negative publicity and outcomes they
have disliked." Id. at 538. See also, Galanter, The Day After the Litigation
Explosion, 46 Md. L. Rev. 3 (1986).
*
7.
Delgado, ADR and the Dispossessed:Recent Books About the
DeformalizationMovement (Book Review), 13 Law and Social Inquiry 145,
152 (1988).
8.
Delgado, Dunn, Brown, Lee, & Hubbert, Fairnessand Formality:
Minimizing the Risk of Prejudicein Alternative Dispute Resolution, 1985 Wis.
L. Rev. 1359, 1394-1395 (hereinafter Delgado).
9.
Fiss, supra note 4, at 1077-1078.
10.
Menkel-Meadow, Forand Against Settlement: Uses and Abuses of the
Mandatory Settlement Conference, 33 UCLA L. Rev. 485, 499-504 (1985).
11.
Burger, Isn't There A Better Way?, 68 A.B.A. J. 274 (1982). Other
authorities believe that the problem is not excessive litigation per se, but
rather a rapid growth in cases filed, coupled with increased complexity,
prohibitive cost, and delay in using the courts. National Institute For
Dispute Resolution, Paths To Justice: Major Public Policy Issues On Dispute
Resolution, 7-8 (1983). Still others believe that there has been no real
litigation explosion. Galanter, Reading the Landscape of Disputes: What We
Know and Don't Know (and Think We Know) About Our Allegedly
Contentious and Litigious Society, 31 UCLA L. Rev. 4 (1983).
12.
Resnick, supra note 6, at 544-545. It is significant. that, despite these
misgivings, the author still expresses substantial mistrust of informal
settlement mechanisms and urges that "we resist the effort to translate
judicial exhaustion into rules or practices that devalue adjudication but offer
no constrained decision making procedure to take its place." Id. at 556.
13.
Nader, Disputing Without the Force of Law, 88 Yale L.J. 998 (1979). It has
been estimated that 1% of our population receives 95% of the legal services
provided. National Institute For Dispute Resolution, supra note 11, at 8.
14. Willrich, Resolving the Legal Problems of the Poor:a Focus on Mediation
in Domestic Relations Cases, 22 Clearinghouse Rev. 1373, 1378 (1989).
15.
Nader, supra note 13, at 998.
16. Friedman, Legal Rules and the Processof Social Change, 19 Stan. L.
Rev. 786, 798-810 (1967); see also New Law Erects Barriersto the Federal
Docket, N.Y. Times, May 12, 1989, (The Law), at B 12.
17. Menkel-Meadow, supra note 10, at 504. See also Galanter, Why the
'Haves' Come Out Ahead: Speculationson the Limits of Legal Change, 9 Law
& Soc'y 95 (1974).
18.
Willrich, supra note 14 at 1375; Teitelbaum & DuPaix, Alternative Dispute
Resolution and Divorce:NaturalExperimentationin Family Law, 40 Rutgers
L. Rev. 1093 (1988).
19.
N. Rogers & R. Salem, A Student's Guide to Mediation and the Law 1-4
(1987).
20.
Pearson, An Evaluationof Alternatives to Court Adjudication, 7 Just. Sys.
J. 420, 439-441 (1982).
21.
Coulson, The Coming Evolution in Court-AdministeredArbitration,69
Judicature 276 (1986).
22.
Goldberg, supra note 1, at 3-13.
23. Delgado, supra note 8, at 1366.
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