ADR and the Culture of Litigation: The Example of the United States of America
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Description
A puzzling and controversial shift in dispute processing in late twentieth century America was the turn to Alternative dispute resolution. Both official and informal disputing were profoundly affected. How can this change be explained? Was there a motivating «crisis» in the courts? If so, what were its ingredients? The rise of ADR presents an opportunity to examine the way in which cultural change interacts with more specific social forces to affect disputing. I will argue that quite apart from a perceived litigation crisis the move to ADR in the late twentieth century had institutional, political, and cultural ingredients. More specifically, that it was dependent on the sometimes conflicting late twentieth century value shifts involving distrust of government and privatization, humanization of large-scale institutions, social progress through individual improvement, and post-modern scepticism about an objective reality. These cultural currents were reflected in—or exploited by—political and institutional actors. In Part I of this paper I will sketch out the rise of ADR in the last quarter of the twentieth century. Part II provides a historical perspective on the use of ADR. In part III I will explain the institutional, cultural and political changes that gave life to the ADR movement. Part IV takes up the claim of some adherents that ADR will make us a better people. Preliminarily, «ADR» takes many different forms because the generic concept includes any process that is an «alternative» to judicial adjudication. In the US, ADR has included a potpourri of processes--negotiation, mediation, arbitration, med-arb (a combination of mediation and arbitration), early neutral evaluation, and summary jury trials. In this paper I will use the tern to refer only to arbitration and mediation. These are themselves very different processes in that arbitration involves a decision by a third party, whereas in mediation the third party assists the disputants in negotiating and reaching their own resolution. The two processes have therefore attracted support from different sectors of society and have served different if overlapping functions in the American legal system. Mediation, because of its emphasis on consensual problem solving, has appealed to reformers for whom the values of communitarianism and self-actualization or determination rank high. Arbitration has often been embraced by business interests for its supposed cost savings over adjudication and because of its reliance on decision makers knowledgeable about the type of dispute to be resolved. Court administrators have established court-annexed programs that employ both forms of ADR in the hope that they will ease judicial caseloads.
Source Publication
Médiation & arbitrage: Alternative Dispute Resolution: Alternative à la justice ou justice alternative? Perspectives comparatives
Source Editors/Authors
Emmanuel Jeuland, Thomas Clay
Publication Date
2005
Recommended Citation
Chase, Oscar G., "ADR and the Culture of Litigation: The Example of the United States of America" (2005). Faculty Chapters. 1132.
https://gretchen.law.nyu.edu/fac-chapt/1132
