ADR: Disputing with a Modern Face, or Bargaining for the Bargain Impaired?

The Alternative Dispute Resolution (ADR) movement might turn out to be one of the most important chapters in the history of the American judicial system. Or, it might not. In its most grandiose form, ADR turns disputing on its head, transferring control over outcome from third-party decision-makers to the disputants themselves, and defining disputing procedure in ad hoc, party-constructed guidelines tailored to the circumstances rather than fixed, generic, and categorical rules applicable uniformly in all situations. In its less grandiose form, ADR simply institutionalizes a system of multi-party bargaining in which third-party neutrals help disputants identify individual interests and find common ground when they are unable to do so by themselves but who, unlike judges, do not tell the disputants how to act on that information once they have it. Think of this latter version of ADR as a system of bargaining for the bargaining impaired.Each version of ADR has its distinctive advantages and disadvantages, but both are susceptible to the well-known propensity of administrative regulation generally to bureaucratize decision-making by defining rights in collective rather than individual terms, standardizing outcomes, and giving repeat players disproportionate power to call the shots. If this happens with ADR, some of the most important commitments underlying the American system of adversary justice will be up for grabs. It is difficult to know how the ADR reform movement will play out, of course, since it is still early in the process and, given ADR’s propensity to operate in secret, trustworthy data is hard to come by. But there is considerable reason to be concerned about the unintended side effects of ADR and thus every reason to keep it on a short leash