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69 Judicature 291 (1985-1986)
ADR Problems and Prospects: Looking to the Future

handle is hein.journals/judica69 and id is 293 raw text is: ADR problems and prospects: looking to the future The alternative dispute resolution movement is at a critical turn in the road. What is needed now is a multi-pronged effort to expand understanding and promote increased involvement and support among all members of society. by Stephen B. Goldberg, Eric D. Green and Frank E.A. Sander f alternative dispute resolution is an idea whose time has come, why has it not spread more rapidly and widely? Why is it that, although the users of neighborhood justice centers ap- pear satisfied with the process, many of these centers are starving for business? Why is there such an abundance of indi- viduals who want to provide mediation services, yet so few customers? In this arti- cle we will explore some of these ques- tions, as well as possible answers. It should be noted at the outset, however, that much of our discussion will be based on speculation, for there is a dearth of reliable data concerning alternative dis- pute resolution mechanisms. Indeed, the absence of such data is itself a deterrent to the use of alternative processes. Impediments to ADR use The reason most frequently given for the failure of disputants to make greater use of mediation and other alternatives to the courts is that they don't know about their existence. Despite increasing pub- licity given to alternatives, we suspect that if a Gallup poll were taken today asking what an individual should do if he had a dispute with his neighbor which they could not resolve, most citi- zens would say go to court or see your lawyer, rather than visit your local neighborhood justice center. The em- phasis given to courts and lawyers as the An initial version of this article was presented by Prof. Sander as a paper at a conference at Harvard Law School in October 1982. Portions of the revised paper are adapted from Goldberg, Green and Sander, DISPUTE RESOLUTION (Little, Brown and Co., 1985), reviewed in this issue of JUDICATURE. 1. Pearson, Thoennes and Vanderkooi, The De- cision to Mediate: Profiles of Individuals Who Accept and Reject the Opportunity to Mediate Con- tested Child Custody and Visitation Issues, 6 J. DivoRc E 17 (1982). 2. See Cooley, Arbitration vs. Mediation: Ex- plaining the Differences, 69 JuDICATURE 263 (1986). paradigm dispute resolvers in American society is simply too pervasive to be eas- ily disturbed. One need only consider, by way of example, the consistent message conveyed by television- People's Court, Miller's Court and Perry Mason. We have no programs entitled Perry Mediator, Miller's Neighborhood Justice Center or People's Ombudsman. Even if potential disputants are aware of alternatives to the court and live in a community where such mechanisms are available, it is often difficult to locate them because they have not been pub- licly institutionalized. This segregation of alternatives from the judicial process also has other adverse consequences, such as the common absence of public funding, which sometimes requires dis- putants to pay for alternative dispute resolution services even as the judicial ones are provided free. More subtle dis- couragement derives from the distrust that often accompanies processes that are new and unfamiliar and that appear to be unaccompanied by the legal pro- tections that disputants have been taught over the years to value so highly. A re- lated deterrent may be the absence of mechanisms for ensuring high standards in the provision of alternatives. Psychological factors may also play a part in the gravitational pull of dispu- tants towards the courts. Over 100 years ago de Tocqueville commented on the tendency in the United States of most social problems to devolve eventually into legal problems. Many disputants go to court because they want to challenge their adversaries rather than come to terms with them. In twentieth century United States, lawsuits are the socially acceptable form of fighting. In addition to these general explana- tions, special considerations may come into play in particular sectors of the dis- puting universe. For example, large in- stitutional litigants may want a binding precedent to guide future disputes, which they can only get from a court. In bureaucratic organizations, such as the government, there is also the tendency towards following the path of least res- istance and minimal risk. This means taking the tried-and-true route of dump- ing the problem into the court's lap, rather than risking criticism that might come from what some superior views as an unwise settlement. The role of lawyers No discussion of the impediments to the use of alternative dispute resolution pro- cesses would be complete without con- sidering the role played by lawyers. For all the reasons alluded to above, most disputes that cannot be resolved by the disputants themselves are today pres- ented to lawyers. In most instances, the client will, we suspect, be unaware of the existence of alternative dispute resolu- tion processes. Hence, if such processes are to be utilized, it will typically be as a result of the lawyer's suggestion and encouragement.' The fact that alterna- tive dispute resolution processes have not been more widely used suggests that lawyers have not been actively encourag- ing their use. Why not? Initially, some of the factors that deter disputants from using alternative pro- cesses also deter lawyers from recommend- ing them. While lawyers are more likely than their clients to be aware of the exis- tence of alternatives, a surprising number of lawyers know very little about them, frequently confusing mediation and arbi- tration.2 Hence, they are reluctant to sug- gest their use. The lack of institutionaliza- tion also has a deterrent effect. If a lawyer

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