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74 U. Cin. L. Rev. 329 (2005-2006)
ADR: The New Equity

handle is hein.journals/ucinlr74 and id is 341 raw text is: ADR: THE NEW EQUITY Thomas 0. Main * The course of justice is like the alternation of the seasons. There is the hope and inspiration of spring and the achievement and reward of summer, and there is the descent and sacrifice of autumn and the moral and intellectual destitution of winter, and the changes in our jurisprudence will come accordingly in spite of us, however much we may be the appointed instruments in their consummation. I I. INTRODUCTION The proliferation of alternative dispute resolution (ADR) has transformed the administration of civil justice. As both a rival and a complement to formal adjudication, ADR presents an alternative forum for most disputes. ADR offers a system with procedural flexibility, a broad range of remedial options, and a focus on individualized justice. ADR performs convenient and useful works that cannot be done, or cannot easily be done, through formal adjudication. And in every case in which one of the various modes of ADR offers a process or reaches a result that differs materially from those of the formal courts, there is in fact a rival system. Thus, contemporary civil justice is administered by dual systems, with formal adjudication on one hand, and a constellation of ADR methods on the other. The administration of justice through divided systems is a familiar model. For centuries the Anglo-American legal system administered justice through the systems of Law and Equity. The Law courts ensured uniformity and predictability, while courts in Equity tempered the law to the needs of the particular case. Although there was considerable tension between the two regimes, they were also symbiotic. Over time the Law courts adopted many of the best practices of Equity. Meanwhile, efforts to crystallize the jurisdiction of Equity introduced complexity and procedural technicalities that turned that system into a *. Associate Professor of Law, University of the Pacific McGeorge School of Law. The author thanks Professor Stephen Subrin, teacher and mentor par excellence, for his comments and insight. Professors Amitai Aviram, Richard Marcus, Dan Markel, Greg Pingree, Carl Tobias, Kojo Yelpaala, and others also generously offered their very useful comments. 1. Douglas M. Gane, The Birth of a New Equity, 67 SOLIC. J. & WKLY REP. 572, 572 (1923). 329

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