ALTERNATIVE DISPUTE RESOLUTION
Dispute Resolution Movement
Despite a steady growth in labor, civil rights, and
court mediation, it was not until the mid-1970s that conflict resolution and dispute resolution generated widespread attention among the public,
bar and judiciary. In the subsequent developments, the policy objectives
expressed earlier in the century were reformulated in new contexts.
Increase caseloads in the federal courts in the 1970's renewed interest
among jurists in the greater efficiency of consensual dispute resolution
compared to traditional court process. Then Chief Justice Warren E. Burger
called for a "fresh, hard look" at court procedures and alternative
methods of dispute resolution, warning that we had "reached the point
where our system of justice - both state and federal - may literally break
down before the end of this century, notwithstanding the great increase
in the number of judges and the large infusions of court administrators."
In view of many judges, informal alternatives would both divert cases
from the courts, thus diminishing backlogs and delay, and save the parties
time and expense. "People with problems," said the Chief Justice,
"like people with pains, want relief, and they want it as quickly
and inexpensively as possible." At the same time, a few courts seemed
to support consensual dispute resolution programs that contributed to
court efficiency even though the parties realized no savings. For example,
non-binding arbitration programs designed to make courts more efficient
proliferated despite the lack of indication that parties benefited, and
they remained even after some circumstances parties' average costs were
Some voiced a rising concern with impediments to access to justice present in the adjudicatory process. In this view, high costs, confusing
and overly complex procedures, delay, and intimidation kept people with
real grievances from pursuing them through the formal legal system. Informal
alternatives such as mediation were advocated not only to streamline case
processing and provide quicker and less expensive resolutions but also
as a measure to increase access to dispute resolution among parties who
previously might have let their conflicts fester.
At the same time, other commentators suggested that the growth of alternatives
might provide more appropriate remedies and standards of decision than
adjudication, particularly for parties with long-term relationships and
disputes involving complex tradeoffs. A related objective was to let individuals
control the resolution of their disputes instead of delegating them to
lawyers for expression and judges for decision.
This meant increasing
the participation of clients and altering the role of attorneys and representatives,
advocates, and principal actors in the dispute resolution process. In
an article discussing alternative Dispute Resolution from the perspective
of indigent clients in civil cases, lawyers Janet Rifkin and JoAnne Sawyer
said, "Participation in the resolution of their own disputes can
give clients a sense of control over their own lives in contrast to the
feeling of being victims of legal process they do not understand."
This argument appealed as well to groups advocating avoidance of lawyers.
Dispute resolution advocates also encourage the use of mediation as a
way to rebuild neighborhood communities where a major concern for the
parties involved is the "continuing relationship." The long
history of mediation in societies structured around small and stable communities
gave rise to the assumption that mediation worked best and adjudication
worked less for parties who were relatives, neighbors, or economic partners.
Commitment to future personal and business relationships constrained parties
from pursuing adversarial solutions to neighborhood and contractual problems.
Thus, explicit attention was often paid to such cases particularly in
designing community mediation programs.
For a period, it appeared that all these agendas - from court efficiency
to rebuilding community - might be accommodated with the increased use of
mediation. The pilot neighborhood justice centers established in Atlanta,
Kansas City, and Los Angeles in the mid-1970s, however, exemplified the
need to choose between competing policy objectives. These mediation programs
were to resolve disputes in a way that would be inexpensive, and
satisfactory to them. The low volume resulted in administrated handling
costs per case that may have exceeded litigation costs for similar cases.
The effect on court caseloads was negligible. The Atlanta program survived
by obtaining a steady diet of court referrals that produced the needed
volume and efficiency, but the resulting mediation service bore little
resemblance to the individual neighborhood-controlled moot that originally
advocated to rebuild community.
In the debate arising over the conflicting agendas for mediation, commentators
expressed divergent assessments of the existing legal system and mediation.
Those who critiqued the legal system focused on how disputes are transformed
when lawyers and judges translate the conflict into legal terms for litigation;
the exaggeration of conflict created by the litigation process; the court
procedures that advantage parties with greater legal resources and especially
those who play the system repeatedly, and the perceived win/loss results in adjudication.
Those attacking increased support for settlement processes claim that
the use of individual rather than legal values in defining and reaching
outcomes resulted in inequities for those groups already disadvantaged
in society. "Compromise," argued legal historian Jerold Auerbach,
"only is an equitable solution between equals; between unequals,
it inevitably reproduces inequality." Cynical about the attempt to
use law to establish a return to personal or community values, Auerbach
law to be less conspicuous, Americans would have to moderate their expansive
freedom to compete, to acquire, and to possess, while simultaneously elevating shared responsibilities above
individual rights. That is an unlikely prospect unless Americans become, in effect, un-American."
In fact, it was argued,
the prominent support of the organized bar and judicial leaders for informal
justice represented a retreat from a commitment to extend the rights
and protections of formal justice to disadvantaged parties.
Others predicted that settlement processes would result in diminished
protection of parties not at the table, frustration of laws designed to
create social change, and loss of the court's voice on public values through
precedent. Constitutional scholar Owen Fiss asserted, "to be against
settlement is only to suggest that when the parties settle, society gets
less than what appears, and for a price it does not know it is paying."