ADR and the 'Vanishing Trial': The Growth and Impact of 'Alternative Dispute Resolution'

Abstract

In the past quarter-century, significant changes have occurred in the ways lawyers approach conflict. There have been unprecedented efforts to develop strategies aimed at more efficient, less costly, and more satisfying resolution of conflict, including more extensive and appropriate use of mediation and other “alternative dispute resolution” (ADR) approaches. This study examines what we know and do not know about the growth and impact of ADR in federal and state courts, in the business sector, and in employment and consumer settings. The analysis examines the relationship between ADR and court trial, but also underlines the broader uses of and rationale for mediation and other process choices. Although there is clear positive evidence of cost and time savings and numerous other benefits of some court-annexed ADR programs, it is evident that much depends on the shape and structure of such programs. Studies of ADR in commercial sectors suggest that the use of mediation has grown in recent years, reflecting perceptions that it offers significant potential benefits to business. Some businesses have developed more integrated, systematic approaches to the management of conflict, although most appear to have taken a more ad hoc, reactive approach to dispute resolution. There are many different kinds of programs for the management of employee grievances, including stepped processes that usually resolve disputes without adjudication. Several scholars have begun to develop a body of data on experience and perceptions of employees and their counsel. The availability of data on investor/broker arbitration is critical for promoting transparency and fairness in the securities field. Lawyers have a growing number of tools for providing clients with appropriate ways of managing and resolving conflict, but we still have much to learn about these choices. Quantitative and qualitative research is essential to provide guideposts for the future.

Keywords: conflict, mediation, ADR, dispute resolution, court, business sector, employment setting, consumer setting, cost, court-annexed

JEL Classification: K4, K41, K49