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3 JContemp Legal Issues 117
3 JContemp Legal Issues 117
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The Dangers of ADR: J. Contemp. Legal Issues
a Three-Tiered System of Justice [3: 117, 1989-1990]
I. INTRODUCTION
macro-political scale, we are warned that the informal nature of ADR inhibits
change by sacrificing the open airing of social and political grievances in order
to attain individual peace and cooperation. 25 When disputants are "cooled
26
out", their energy is drained from collective action. The result is that
discontent is siphoned away from the courts, and political confrontations
27 are
reduced, thereby preserving the power and stability of the state.
A second group of concerns regarding public ADR relates to
fundamental fairness. For instance, some critics believe that women will fare
poorly in court- ordered mediation, because their less-powerful, economically
disadvantaged status will be perpetuated in this informal process. 28 Because
the results of mediation are private, non-appealable, and non-enforceable,
critics fear the rights of women and children will be diminished. Family
disputes will be trivialized in these extra-judicial proceedings, while the legal
system is reserved for corporate and other "important" disputants. 2 9 Others
worry that minorities will be badly treated in alternative processes because
there are no formal mechanisms to control the impact of bias, stereotyping or
prejudice. 30 These concerns, that the invisibility of informal processes may
put the disputants at the mercy of the unexamined value systems of the
dispute resolvers, merit serious consideration. To address them by imposing
the checks and balances of formal adjudication would sacrifice the speed and"
flexibility which are at the heart of ADR. Thus, only increased training of
dispute resolution providers and careful monitoring of results offer the
possibility of preserving what is best in ADR while attempting to minimize its
risks.
A related set of concerns about public ADR has to do with the
competence of the providers. Court-annexed arbitration programs face hard
choices in order to survive. Either they must raise their fees or they must
give up panels and use only single arbitrators, who often lack special skills.
In the end, court-annexed arbitration may produce "an award based on a
perfunctory presentation by the parties and an evaluation by a panel of three
non-specialized lawyers." 3 This contributes to fears that arbitration "with its
abbreviated procedures and rapidly decided outcomes, will produce 'second
class' justice." 32
The concern that those who participate in court-annexed mediation may
receive second-class justice is also legitimate. Often these programs utilize
volunteers3 3 who receive little supervision, have minimal training, and lack
legal information and experience. 35 What a disputant is willing to settle for is
a poor standard for measuring the fairness of results in these cases. Parties
may compromise out of ignorance, frustration or a desperate desire for closure
at any cost. 36 In custody disputes, courts frequently utilize full-time
professional mediators, who may possess better skills and more accurate
information than volunteers, but whose effectiveness is often hampered by
case load, time pressures,
37 and the artificial exclusion of critical issues such as
property and support.
Finally, there are legitimate concerns that these limitations in quality of
delivery in public ADR programs may have a disproportionate impact on the
poor. Poverty may make a person more vulnerable to the weaknesses of ADR
The Dangers of ADR: J. Contemp. Legal Issues
a Three-Tiered System of Justice [3: 117, 1989-1990]
because there is no right to receive legal advice before, during or after the
process. This may leave disadvantaied disputants ignorant about their rights
and options within the legal system. 8 The poor also lack the ability to access
the private dispute resolution mechanisms available at the top: the skilled
mediator who has no restrictions on time or issues, the outstanding
arbitrators with special expertise, the best retired judges to hear the case and
render a decision. Their only recourse is to accept whatever the system
directs them to use as a dispute resolution mechanism. Certainly, this does
not constitute equal access to justice.
V. CONCLUSION
ENDNOTES
* This paper was originally prepared for presentation at the ABA 1989
annual meeting.
** Professor of Law, University of New Mexico School of Law.
1. S. Goldberg, E. Green, & F. Sander, Dispute Resolution 285-290 (1986)
(hereinafter Goldberg).
2. Raven, PrivateJudging:A Challenge to Public Justice, A.B.A. J., Sept. 1,
1988 at 8.
3. Id.
4. Fiss, Against Settlement, 93 Yale L. J. 1073, 1089 (1984).
5. Id. at 1085.
6. Resnick, FailingFaith:Acjudicative Procedure in Decline, 53 U. Chi. L.
Rev. 494 (1986), notes that "many defendants (and their attorneys) in
products liability and antitrust cases.., now seem intrigued by ADR as a
means for protecting themselves from negative publicity and outcomes they
have disliked." Id. at 538. See also, Galanter, The Day After the Litigation
Explosion, 46 Md. L. Rev. 3 (1986).
J. Contemp. Legal Issues The Dangers of ADR:
[3: 117, 1989-1990] a Three-Tiered System of Justice