Last night an esteemed colleague kindly emailed me the following quote, attributed to Sandra Day O’Connor:
The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.
I think that many of us–alternative dispute resolution professionals, lawyers, and ordinary citizens–would wholeheartedly agree.
Justice O’Connor’s words acquire special meaning just one day after Harvard Law Professor Frank Sander, a pioneering leader of the modern alternative dispute resolution movement, was honored for his numerous contributions to the ADR field.
Thirty years ago, Chief Justice Warren Burger invited Professor Sander to present a paper at the Roscoe Pound Conference of 1976, a historic gathering of legal scholars and jurists brought together to discuss ways to address popular dissatisfaction with the American legal system and reform the administration and delivery of justice. Sander’s paper, “The Pound Conference: Perspectives on Justice in the Future“, profoundly influenced and transformed both ADR and the American legal system. It has in many ways acquired the status of a sacred text for ADR professionals; it is at once history and cultural narrative.
Sander reminded conference participants of the limitations of traditional litigation with its “use of a third party with coercive power, the usually ‘win or lose’ nature of the decision, and the tendency of the decision to focus narrowly on the immediate matter in issue as distinguished from a concern with the underlying relationship between the parties.” He urged conference participants to envision alternatives, a “rich variety of different processes, which, I would submit, singly or in combination, may provide far more ‘effective’ conflict resolution.” And he reminded them of “the central quality of mediation”, namely “its capacity to reorient the parties toward each other, not by imposing rules on them, but by helping them to achieve a new and shared perception of their relationship, a perception that will redirect their attitudes and dispositions toward one another.”
Sander was one of those early pioneers who blazed rocky trails that 30 years later are now well-traveled roads. The institutionalization of ADR is virtually complete. No longer novel and revolutionary, ADR has become commonplace, woven tightly into the fabric of legal, commercial, workplace, community, academic, and civic interactions.
This large-scale integration of ADR, however, as largely positive as it has been, has unfortunately produced problems of its own.
In an age of tort reform and mandatory arbitration clauses, ADR has been exploited as a means of concealing civil wrong or criminal misconduct or preventing the powerless from seeking justice against the powerful, as this recent article from NorthJersey.com reminded me. (For a full analysis of this issue, please see this post from March 2005, “The company we keep: ADR, tort reform, and the erosion of justice” (selected last month as a Gather.com Editor’s Pick), issued as a call to arms to my profession and a rebuke to those few misguided mediators who all too eagerly denounce litigation as an unnecessary evil).
Thirty years after the groundbreaking Pound Conference is a good time for perspective taking as the ADR field advances into the 21st century. It’s an opportunity to remember our roots.
ADR was founded on notions of greater access to justice for all, improved satisfaction with dispute resolution processes, and meaningful choices for resolving disputes in mutually satisfying ways. Sander and those early pioneers envisioned a multi-door courthouse, with doors swinging wide open to a broad range of dispute resolution processes, where disputes could be efficiently addressed through the mechanism best suited for the parties and the issues involved.
Sanders emphasized the need “to reserve the courts for those activities for which they are best suited and to avoid swamping and paralyzing them with cases that do not require their unique capabilities”. At the same time, Sander recognized the legitimacy of the “need to retain the courts as the ultimate agency capable of effectively protecting the rights of the disadvantaged”.
These should remain our bedrock principles. Justice, like ADR, must remain accessible, to the powerless and the powerful alike. Otherwise alternative dispute resolution ceases to be an alternative at all. As ADR professionals, let us work to keep the multiple doors wide open–before they slam shut in the faces of those who are most vulnerable.