The Vanishing Trial?

The Vanishing Trial

By Mikita Weaver

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.

See Harry T. Edwards, Alternative Dispute Resolution: Panacea or Anathema?, 99 Harv. L. Rev. 668, 668 (1986).  Although alternate dispute resolution was once considered a cultish following of a few offbeat scholars, the movement has attracted a significant number of adherents “with the rise of public complaints about the inefficiencies and injustices of our traditional court system.”

Marc Galanter, A World Without Trials? (2006) J. Disp. Resol. 7.

Edwards, supra note 1, at 679.  If all civil rights cases had been mediated in the 1960’s and 1970’s, civil rights law would have been “impoverished.”  Id.  Furthermore, “[t]he wholesale diversion of cases involving the legal rights of the poor may result in the definition of these rights by the powerful in our society rather than by the application of fundamental society values reflect in the rule of law.”

Lisa Blomgren et. al. Dispute Resolution and the Vanishing Trial: Comparing Federal Governmnet Litigation and ADR, 5.

See Andre R. Ibrogno, Using ADR to Address Issues of Public Concern: Can ADR Become an Instrument for Social Oppression?, 14 Ohio St. J. on Disp. Resol. 855 (1999) (asserting that society is threatened when familial matters such as child abuse and domestic violence are resolved using private dispute resolution instead of public adjudication; suggesting private dispute resolution may further victimize and isolate already vulnerable victims).

See Betty D. Robinson, Considering Grievance Mediation, Employee Responsibilities and Rights Journal Vol. 5 No. 2 (2005) (suggesting that the shift from formal arbitration towards grievance mediation in labor law fails to recognize the uniqueness of individual labor-management and the necessity of formality).

See Wayne D. Brazil, Should Court-Sponsored ADR Survive?, 21 Ohio St.J. on Disp. Resol. 241, 276-266 (2006) (advocating for court ADR programs generally; suggesting different standards for civil rights cases and cases with a party proceeding in forma pauperis).

Although Judge Wald suggests that the nation’s complicated toxic waste disputes can only be resolved through negotiations rather than litigation, private environmental negotiations that bypass federal and state agencies may not serve the public interest if the negotiations result in weaker standards that compromise strict government standards.  Edwards, supra note 1, at 677-78.  A community with little resources—often the case in toxic waste cases—will have relatively little bargaining power.  See Amber McKiney, The ACLU and the Propriety of Dispute Resolution in Civil Rights Controversies 6 Pepp. Disp. Resol. L.J. 109, 121-122 (2006).  Because each case is dealt with on a case-by-case basis in negotiations or mediation, the community cannot benefit from precedence and uniformity that typically accompany judicial decisions.  See id. at 122.  Negotiations also focus on the individual nature of the dispute instead of on the overall pattern of discrimination of the offender; furthermore, negotiations lack procedural safeguards to protect the rights of minorities where negotiation proceedings are confidential in nature and executed without a formal record.

Professor Marc Galanter discusses the impact that ADR has had on the number of cases that reach the final stages of litigation.  In the past half century alone, the federal court system saw a decline of civil trials from 5,802 in 1962 to 3,951 in 2004. Galanter says the following on the increasing role of ADR:

While confidence in adjudication and courts has declined, the courts, politicians, and business elites have embraced “alternative dispute resolution.” Courts have incorporated “alternative” processes like mediation, early neutral evaluation, arbitration, summary jury trial; they have engaged in outsourcing to ADR institutions; and doctrinally, they have enhanced both the power of those institutions and their exclusive jurisdiction. ADR institutions and programs have proliferated [citations omitted].

Galanter also blames the decrease in trial and full-blown litigation on the following reasons:

  1. convergence of common law and civil code systems
  2. displacement of trials to administrative, arbitral, and other dispute resolution mechanisms
  3. assimilation of trial-like procedures and due process into surrounding institutions other than courts
  4. transformation of the legal system from a rational, rule-centered and formal system into an informal decisional process entailing negotiation, participation, and interaction; and
  5. evolution of an adversarial process into something different, entailing process pluralism ‘intelligently designed’ to produce more optimal outcomes.

In considering the current debate, Professor Lisa Blomgren Bingham of Indiana University School of Public and Environmental Affairs conducted a study comparing dispute resolution with litigation in cases handled by the Assistant United States Attorneys (AUSAs) during the period 1995 to 1998. She found that “use of ADR can be an efficient and effective procedural solution to the problems of time and cost in the justice system without sacrificing the quality of macrojustice.” Although additional research is necessary, she found the following:

When ADR was used, 65% of cases settled (only 29% of cases settled when it was not used). Significantly more cases settled when ADR was voluntary than when it was mandatory (71% vs.50%), and tort cases settled with more frequency than employment discrimination case s (73% vs. 60%). When using ADR, AUSAs subjectively estimated that the process saved significant time and money. AUSAs spent an average of $869 in neutral fees and estimated that the process saved $10,735 in litigation expenses per case. AUSAs spent an average of 12 hours preparing for ADR and 7 hours in the ADR process per case, which they estimated saved 88 hours of staff time and 6 months of litigation time per case.

She found that ADR is just as fair as a litigated outcome and the sooner a case is referred to ADR, the quicker the case is disposed. Blomgren’s study shows how ADR is being used in the federal court system and how ADR can be improved without sacrificing the quality of justice. Although additional research comparing litigation and ADR is still needed, ADR is promising as a viable alternative to litigation in many areas of law.   Furthermore, as litigation becomes more costly and time consuming, practitioners must embrace the new face of law.

“Analyses of various macrojustice outcomes show that ADR outcomes were not significantly different from litigated outcomes, indicating that the process was neutral, favoring neither private parties nor the government. While these statistics are descriptive, a final analysis shows that the earlier a case is referred to ADR, the shorter its time to disposition.”


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