Do the Haves Come Out Ahead in Alternative Judicial Systems? Repeat Players in Adr
Ohio State Journal on Dispute Resolution, Vol. 15, pp. 19-61, 1999
Posted: 21 Feb 2000
Date Written: 1999
This article revisits Marc Galanter's important thesis expounded twenty five years ago, that the "haves", or better resourced litigants, and repeat players in the system have structural advantages over "one-shotters" and less resourced litigants. This article reviews the applicability of that thesis to recent developments in ADR, especially in the context of contractual arbitration. The article reviews recent cases and developments in employment arbitration, health, education, securities and consumer disputes in which contractual arbitration is mandated by "repeat player" and institutionally strong disputants. The existing empirical research is reviewed to suggest that, as in litigation, the "haves" often "come out ahead" in ADR, too. This has implications for when and how third party neutrals, as well as litigants, are repeat players in these processes and why and how particular parties try to control the kinds of processes that are used to resolve certain kinds of disputes. If ADR is no more effective at justice "redistribution" than litigation, we must examine other justifications for ADR. Mediation may operate differently than arbitration in this context, and, as usual, more research is needed to assess these issues.
JEL Classification: K41
Suggested Citation: Suggested Citation