The Vanishing Trial?
Scholars and practitioners alike often seem up in arms about the “vanishing trial.” Most seem worried that this decline in litigation will ultimately destroy justice. Instead of achieving justice through a court system, conflicts are being resolved without the assistance of lawyers, judges, and–dare I say—lots of time, money, and resources! Many blame ADR. As the court system became more overburdened, alternate dispute resolution methods slowly became recognized as viable alternatives to litigation.
No doubt, few would advocate a “world without all trials.” Although alternate dispute resolution increases access to justice by offering inexpensive and creative methods to resolve conflicts outside the courtroom, ADR can become a “tool for diminishing the judicial development of legal rights for the disadvantaged.” Assuredly, “issues of justice are more salient when the federal government is a litigant.” Despite the rising popularity of alternate dispute resolution, various areas of law require trial to create precedent and protect certain civil rights. Scholars and academics have asserted various concerns about whether negotiation and mediation are an appropriate alternative in areas such as family law, labor law, civil rights, and environmental law.