It's the end of the world as we know it
it's the end of the world as we know it,
and I feel fine.
- REM
Hilarie Bass recently wrote an editorial piece questioning whether we are seeing "The End of the Justice System as We Know It." See ABA Journal of the Section of Litigation, Vol. 36, No. 4 (Su. 2010). She opens by citing recent statistics that only approximately 1% of law suits today are ultimately resolved by way of a trial. The number of cases proceeding to trial used to be more commonly estimated at about 5%, so this represents a shift that is worth considering.
Ms. Bass suggests several reasons for the decline in cases going to trial, including mounting litigation costs, increased uncertainty as to outcome, and the increasing court-mandated use of alternative dispute resolution processes. All of these are certainly contributing factors. However, I think the editorial overlooks an even more basic factor, and effectively puts the cart before the horse.
Specifically, there is a growing anecdotal sense of popular discontent with lawyers and litigation. Think of the infamous hot coffee spill case, the O.J. trial, etc. See "Lawyer Fatigue," Jim McElhaney 1996, reprinted in ABA Journal, Vol. 96 (Nov. 2010). Think of all the lawyer jokes, the calls for tort reform, and the very troubling statistics concerning unequal access to justice. In this larger social context, the growing favor for alternative methods of dispute resolution is not simply the result of court mandates or an effort by lawyers to beat the odds. Rather, it reflects a genuine shift in society's comparative valuation of litigation to other forms of conflict resolution.
As the National Center for State Courts notes on its ADR page, every state today has at least "some type of court-connected ADR at some level," although the exact nature and issues vary due to the "grass roots nature" by which they have evolved. As the Policy Consensus Initiative (PCI) reported in July 1998, the founding of new state ADR programs became fairly consistent in the early 1980's, and growth stepped up even more in the mid-1990s. Similarly, in 1990, the U.S. Legislature passed the Civil Justice Reform Act, which required each U.S. district court to implement a Civil Justice Expense and Delay Reduction Plan. Over the years, this has in turn led to a substantial increase in mediation in federal courts, as well as in state court.
The rise is use of ADR methods, moreover, is not limited to mediation. Arbitration--once viewed as "Cadillac justice" that was used in only narrow circumstances such as labor law, and commercial and construction contracts--also seems to be undergoing a renaissance. While its rise is accompanied by some debate and concern, see Wall Street Journal Blog, The Rise of Arbitration, it is generally viewed very favorably. More than half of the participants polled in 2003 viewed it as less expensive than litigation, while 78% viewed it as speedier and 83% believed it is as fair or fairer than traditional litigation. (For citations, see Victoria Pynchon's excellent source summary of statistics in her blog, Negotiation Law, "More Statistics on the Differences between Arbitration and Litigation Procedures, Cost, Duration and Outcome."
Moreover, I submit that even the rise of "collaborative divorce" should be understood as part of the larger ADR growth phenomena. A main purpose and goal of collaborative practice is to preserve the ability of divorcing parents to work and communicate together, to successfully raise their children. As the name indicates, the parties' lawyers work collaboratively rather than in opposition to each other, and the model also relies heavily on the use of a variety of "neutrals." The collaborative teams will include mental health professionals, financial planners and, where appropriate, mediators and/or arbitrators. This, to my mind, is quintessential alternative dispute resolution, because it turns traditional litigation on its head and strives to maintain the functionality of relationships in the face of severe dispute.
I believe the steadily expanded use of ADR-- from more traditional mediation and arbitration, to the emergent, visionary model represented by collaborative divorce--must be viewed against the larger back drop of social discord concerning traditional litigation. Anecdotal complaints suggest the legal system is broken or damaged, in many ways. It frankly is too expensive, uncertain, complicated and opaque. It leads to "scorched earth" tactics that frequently result in more damage to the parties and/or their relationship than the original dispute, and average citizens are unable to comprehend or navigate it on their own. ADR, then, represents a functional remedy whose time has simply come.
Although some litigators may worry that ADR represents the end of the world as they know it, I for one will be just fine with a legal system that includes a lot more ADR and collaborative practice, and less traditional scorch-earth litigation.
