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Alternative 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 increased.

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 observed:

"For 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."