Wednesday, October 6, 2010

ADR and the Rule of Law

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.

1 comment:

  1. Daniel,

    An excellent example of the tension you describe is presented by the AT&T Mobility LLC v. Concepcion case pending before the United States Supreme Court. That case will decide whether the Federal Arbitration Act preempts California's Discover Bank rule, which renders class waivers in adhesive contracts unenforceable in certain circumstances.

    California state and federal courts apply the Discover Bank rule to impose class action litigation or arbitration procedures on parties that agreed to bilateral arbitration only. Underlying that rule are a number of questionable assumptions about arbitration's ability to deal effectively with small dollar fraud claims asserted by numerous consumers, and to discourage corporations from attempting to cheat a large number consumers out of sums that are trivial on a per customer basis, but substantial when the claims of all customers are aggregated.


    Philip J. Loree Jr.