Discourage
litigation. Persuade your neighbors to compromise whenever
you can...
As a peacemaker, the lawyer has a superior opportunity of
being a good man (or woman). There will still be business
enough."
-Abraham Lincoln
(Note that the pictures below are of mediation training sessions
conducted for ASL students)
American legal tradition has emphasized the settling of most
civil disputes through litigation or decision by judges or
juries. Most Americans believe that every person has a right
to his day in court to obtain justice. Since World War II,
many individuals and organizations increasingly resort to the judicial process to resolve disputes, but our
federal and state courts have become overburdened with litigation
and the process has both slowed dramatically and become costly.
Recent studies show that the number of disputes resolved by trial diminished even though the number of cases has grown exponentially.
By its very nature, the litigation process
encourages adversarial relationships or conflicts between
the parties to a dispute
- one party is "right" and the other party is "wrong." These
conflicts or "hard feelings" between the parties
frequently continue long after the dispute is settled. Each
party also believes that each party must have his own lawyer
to be effectively represented and that the litigation must
continue until a judge or jury renders the decision.
Alternative Dispute Resolution (ADR) or
any method of resolving a dispute that does not require the
ultimate decision to be
made formally by a judge or jury has gained advocates in the
United States during the last twenty years. Although arbitration,
mediation and conciliation have been practiced to some degree
to resolve conflicts throughout our history, the contemporary
movement to embrace ADR dates from 1976 when the American Bar
Association sponsored the Pound Conference. Harvard Law Professor
Frank E. A. Sander proposed to the attendees the concept of
a "courthouse of many doors" which stressed there
are many different types of disputes that should be handled
in many different ways. This conference brought ADR to the
attention of the organized bar and marks the beginning of court
sponsored dispute resolution in civil matters.
Other advocates of ADR have suggested the use of the American
Arbitration Association or private enterprise to resolve commercial
disputes short of court.
The ADR reform movement has accelerated
rapidly at both the state and national levels. By 1990, every
state and the District
of Columbia had some type of dispute resolution program. Several
states such as Texas and California mandated the use of ADR
in all civil cases before trying the courts. Because most of
these programs are administered by the judiciary, they are
called "court annexed."
The private sector, particularly large corporations, embrace ADR. The Center for Public Resources has
focused on providing ADR services for our 600 largest corporations
which account for one-half the gross national product. These
companies are committed to trying ADR before filing a lawsuit.
Venture capitalists have invested in a new type of professional
service company to provide ADR to the private sector. Firms
like Judicial Arbitration and Mediation Services Company and
Endispute emphasize speed, low costs and privacy for their
clients. Companies firmly committed to ADR reap the
benefits of lower costs, quicker dispute resolution, and outcomes
that preserved and sometimes improved relationships.
At the federal level, senior judges publicly
endorse ADR. For example, the Chief Justice of the United
States, William
Rehnquist, in 1988, told the bar, "alternative forms of
dispute resolution such as mediation and arbitration should
be the first choice in resolving most conflicts." A study
in 1990 by the U.S. Federal Judicial center indicated:
- ADR programs provided more timely case resolutions;
- Participants had not viewed ADR as a form of second-class
justice;
- The vast majority of participants believed the ADR procedures
were fair;
- ADR reduced the overall cost of litigation;
- Judges overwhelmingly believed ADR programs reduced their
caseload burden;
- 97 percent of judges surveyed supported the expansion of
court-annexed ADR.
With the support of the Bush Administration, the U.S. Congress
passed the Civil Justice Reform Act of 1990 which encouraged
all federal courts to have some ADR policy or program in place
by December 1, 1993. The Clinton Administration has continued
to support the application of ADR.
By 1994, ADR was being used somewhere in the United States
to settle most types of civil disputes. Health care, medical
malpractice, property and casualty insurance, employment disputes,
construction contracts, banking, real estate, environmental
insurance, corporate mergers and acquisitions, commercial agreements
such as franchises, international trade and domestic or family
issues have proved appropriate areas for adopting ADR. Even
non-profit organizations such as museums and colleges are turning
to ADR. The American Bar Association organized a new Section
on Dispute Resolution in February 1993. It has more
than 8,000 members. Its first president, R. William Ide,
III, noted on one occasion:
"We must act to unclog the courts
and provide less costly forms of redress if Americans are
to have equal access to justice.
Alternative dispute resolution is an essential part of our
strategy for achieving this goal.
The mind-set that if we have an issue,
we take it to court must change among American lawyers and
the public. Lawyers
are slowly learning that the adversarial system is unsuited
and unable to handle many of the conflicts foisted upon it.
However, it is imperative that we accelerate the acceptance
of ADR as an alternative."
Despite the ground swell of support for
ADR, skeptics abound. Because many grassroots Americans
and companies believe that "winning
is the only thing that matters," they reject any approach
which suggests compromise or less than total victory. Most
lawyers see ADR as "a threat to their income and unwelcome
abandonment of tradition." These attitudes coupled with
a tendency to adopt many features of litigation (i.e. extensive
discovery, stipulation or expert testimony) to the ADR process,
thereby negating some of the advantages of ADR, has perpetuated
the reliance on litigation.
If the American legal system is to more fully embrace ADR,
law schools must incorporate this approach into their programs.
Karen D. Kraemer and David Singer have called for this overhaul
of legal education. Karen D. Kraemer, who is a member of the
New York and California state bars and a former professor of
civil procedure at Southwestern University School of Law, has
observed:
"One major key to unclogging the courts
is to truly integrate the concept of mediation in the way
American society resolves
its civil, business disputes...If mediation and other non-adversarial
methods of dispute resolution are to be integrated into our
society, then these concepts must similarly be integrated into
the basic training for attorneys. If the attorney's role is
to help clients resolve disputes, then education must provide
proper preparation for the job. The primary challenge lies
in convincing law schools."
ASL
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