Does ADR's "Access to Justice" Come at the Expense of Meaningful Consent?
25 Pages Posted: 13 Aug 2018
Date Written: August 13, 2018
Over the last forty years, ADR processes, in particular mediation and arbitration, have been advanced as vehicles to secure access to justice for individual litigants and to improve efficiency in overburdened court systems. These processes have functioned as alternatives to the court adjudication of disputes, complementing the judicial system, and operating in what has been famously described as “the shadow of the law. The primary benefits promised by ADR were party autonomy and empowerment. ADR processes would allow parties to “fit the forum to the fuss.” These processes would give parties the opportunity to create their own mosaic of justice, personalized and individualized justice, not unlike the fairness remedies that equity courts had historically provided. I argue that claims about ADR’s ability to provide access to justice should be more modest. As it turns out, ADR falls short on its original promises, giving short shrift to the value of consent. Over the last few decades, party autonomy has diminished in both mediation and arbitration, and it is not clear that ADR has resulted in greater efficiencies for the courts. In this Article, I question whether ADR processes have provided the kind of access to justice envisioned by proponents, or whether they have been stumbling blocks to achieving that goal. My skepticism is prompted by the withering away of consent in arbitration and mediation, two of the most commonly used ADR processes.
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