Our Courts, Ourselves: How the Alternative Dispute Resolution Movement Is Re-Shaping Our Legal System

Twenty-seven years ago, Professor Frank Sander urged American lawyers and judges to re-imagine the civil courts as a collection of dispute resolution procedures tailored to fit the variety of disputes that parties bring to the justice system. Professor Sander’s vision of the justice system encompassed traditional litigation leading to trial, but his speech at the 1976 Roscoe Pound Conference drew attention to alternatives to traditional dispute resolution that he argued would better serve disputants and society than traditional adversarial processes. Today, interest in dispute resolution is high. This interest cuts across many domains, ranging from the family, to the schoolyard, to workplaces and sales transactions, to community decision making, and to the courts. It is reflected in academic degree programs, law school and business school curricula, executive training, and contin- uing legal education. The dispute resolution procedures of interest include negotiation, mediation, arbitration, and hybrids such as “med-arb” and “reg-neg.” While in some domains, such as schools and neighborhoods, dispute resolution procedures are championed as alternatives to individual or social violence, in the business and legal sectors the primary stated objective of alterna- tive dispute resolution is to avoid litigation and trial. Alternative dispute resolution (“ADR”) procedures have not displaced traditional litigation; hundreds of thousands of lawsuits are filed annually in state and federal courts. But there are some reasons to believe that the ADR movement has had some success over the past twenty-five years in changing business and legal decision-makers’ views of how best to resolve legal disputes. Courts’ civil caseloads have declined significantly over the past decade in many jurisdictions. At the same time, there has been a dramatic decrease in the fraction of civil cases reaching trial. Federal courts are now required by law to offer some form of ADR, and many state courts require parties to attempt to resolve their cases through mediation before they can obtain a trial date. Outside the courts, the use of binding arbitration appears to be on the rise. How did these changes come about? What factors have created the surge of interest in alternatives to litigation? What do these developments portend for our legal system? To my knowledge, no one has yet written a comprehensive history of the dispute resolution movement in the United States. In any event, there are no doubt myriad understandings of that history. In this paper, I present a perspective on just one part of that history: the evolution of alternative dispute resolution in the legal world. It is my personal perspective, drawing on the literature of the past several decades, as well as my experience working in this field as a policy analyst, legal scholar, and law teacher. It is a critical perspective that would be contested by many of my colleagues in the field. I offer it to provoke thinking and discussion, recognizing that others would interpret the evidence differently