Cross-posted from the Consumer Law & Policy Blog
For several decades, Alternative Dispute Resolution (ADR) has been viewed as the savior of the American civil justice system. ADR is viewed as providing a voluntary, cheaper, quicker, and more efficient alternative to our slow, expensive justice system.
Like most, I support the notion of ADR. How can anyone argue with an alternative system that is cheaper, quicker and more efficient? I have long had problems, however, with what currently passes for ADR. Arbitration, especially in the context of consumers, is fast becoming the norm, rather than an alternative, and it is anything but voluntary or cheaper, not to mention the problems of unfairness and the elimination of precedent and stare decisis. Mediation, while better in theory, is often used only late in the civil justice process and simply adds another expense and formal process. When I graduate from law school, we were told most cases settle “on the courthouse steps.” Today, students are told they settle in formal mediation, and that your client must pay the fees of the mediator.
This is not to say I don’t support an alternative way of resolving disputes. In fact, I think arbitration, when truly voluntarily agreed to, can be an excellent forum, and mediation, if pursed early in the litigation process, can often result in a prompt settlement, without much of the cost and hostility of litigation. (link to full post)
If you or your organization is interested in learning more about or working on these types of civil justice issues, please feel free to contact me at email@example.com.
Senior Fellow in Civil Justice
Drum Major Institute for Public Policy