Adr: The New Equity

Abstract

The proliferation of alternative dispute resolution (ADR) has transformed the administration of civil justice. As both a rival and a complement to formal adjudication, ADR presents an alternative forum for most disputes. ADR offers a system with procedural flexibility, a broad range of remedial options, and a focus on individualized justice. ADR performs convenient and useful works that cannot be done, or cannot easily be done, through formal adjudication. And in every case in which one of the various modes of ADR offers a process or reaches a result that differs materially from those of the formal courts, there is in fact a rival system. Thus, contemporary civil justice is administered by dual systems, with formal adjudication on one hand, and a constellation of ADR methods on the other.

The administration of justice through divided systems is a familiar model. For centuries the Anglo-American legal system administered justice through the systems of Law and Equity. The Law courts ensured uniformity and predictability, while courts in Equity tempered the law to the needs of the particular case. Although there was considerable tension between the two regimes, they were also symbiotic. Over time the Law courts adopted many of the best practices of Equity. Meanwhile, efforts to crystallize the jurisdiction of Equity introduced complexity and procedural technicalities that turned that system into a jus strictum differing little from the Common Law. With each system looking increasingly like the other, Law and Equity were merged into a single system in a wave of reforms in the late nineteenth and early twentieth centuries. The reformers envisioned a unified procedural apparatus that would permit judges to jointly administer the substance of both law and equity. However, an important ingredient of the jurisprudence of Equity was displaced by the procedural merger: a merged system offered no recourse from the procedural apparatus itself when the unique needs of a particular case demanded a different procedure. Moreover, the substance of equity lost much of its vitality in the merged system.

The system of ADR stands in this breach created by the merger of Law and Equity. ADR offers an alternative system for relief from the hardship created by the substantive and procedural law of formal adjudication. Moreover, the freedom, elasticity, and luminance of ADR bear a striking resemblance to traditional Equity, offering relaxed rules of evidence and procedure, tailored remedies, a simpler and less legalistic structure, improved access to justice, and a casual relationship with the substantive law. Alas, the dark side of ADR is also reminiscent of Equity: unaccountability, secrecy, an inability to extend its jurisdictional reach beyond the parties immediately before it, and a certain vulnerability to capture by special interests.

The reincarnation of equity through ADR illustrates a pervasive dialectic between law and equity. Conflict between the goals of certainty and individual justice has created an ambivalent attitude in the law toward equity, to which the law is attracted by reason of the identification of equity with a general sense of justice, but which the law ultimately rejects because of the law’s concern for certainty. Hence, a vibrant system of Equity mediated the strict law until it, too, became bound and confined by the channels of its own precedents and the technicalities of its own procedures. ADR emerged, in turn, as the equitable alternative. And the pattern repeats: the remarkable popularity of ADR leads inevitably, albeit ironically, to reforms that would constrain that very system.

This Article uses an equity paradigm to develop a theory of ADR and, where necessary, to guide reform. Preserving equity through ADR is important because no set of prohibitive or declaratory rules will do justice in all cases or will anticipate all situations. Because unimaginable events are inevitable, some alternative or escape from rule-bound formalism is important. Indeed, equity is a progressive force in the law. When formal adjudication cannot provide a plain, adequate, and complete remedy, the system of ADR should be flexible enough to deliver individualized justice. The repeated exercise of that protean jurisdiction identifies systemic failures of the formal system and ultimately wields a reforming influence. The need for an autonomous system of discretionary law may be as great as or greater than ever. Thus, the Article argues that equity should make the most of the modern instrument, ADR, as it once did of the subpoena.

Specifically, I argue that flexibility and discretion should prevail in ADR processes even when pragmatism may demand detail and complexity. ADR must be free of the procedural paraphernalia of certainty and predictability to perform its complementary role in the administration of justice through dual systems. Contemporary efforts to standardize and restrict the processes of ADR recognize the right problem, but propose the wrong solution. The problem is the number and significance of cases that are resolved outside of formal adjudication. The solution is not reform of the alternative system that is drawing them in, but rather reform of the formal system that is driving them away.

Keywords: ADR, Equity

JEL Classification: K41