Is there a tension between various forms of Alternative Dispute Resolution and the Rule of Law? Many argue there is. Critics suggest that ADR represents the privatization of dispute resolution to the detriment of society because public litigation allows for the refinement and development of the law and published decisions are necessary to define and protect individual rights.
Others argue that ADR weakens the less powerful members of society (See, e.g., Harry T. Edwards, Commentary, Alternative Dispute Resolution: Panacea or Anathema?, 99 Harv. L. REV. 668, 675–82 (1986); Owen M. Fiss, Commentary, Against Settlement, 93 Yale L.J. 1073, 1075 (1984); David Luban, Settlements and the Erosion of the Public Realm, 83 Geo. L.J. 2619, 2622–23 (1995); Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L.J. 1545 (1991)). I think those views have lost the argument. Clearly, we are not without written decisions by the courts at all levels, produced through the most vigorous use of litigation.
The University of Missouri Center for the Study of Conflict, Law and the Media, along with the ABA Section of Dispute Resolution is sponsoring a Symposium that will take a close look at the supposed tension between the Rule of Law and ADR.
Scheduled for October 15 at the University of Missouri School of Law, the Symposium claims to be the “first-ever convening of scholars and practitioners from across the globe to consider this relationship more deeply.”
It looks very interesting. Wish I could attend.
If anyone attends and has any comments or responses, please let me know or post your comments here.