The Myth of Alternative Dispute Resolution in the Federal Courts

Abstract

Scholars, legislators, judges, and the bar view alternative dispute resolution (ADR) as an efficient and effective procedural solution to the management problems associated with federal court civil litigation. ADR is perceived as a panacea for much that ails the federal courts, this article evaluates the premises underlying the ADR movement.

This Article performs a critical assessment of ADR as it is currently used in federal courts. Part I describes the major types of ADR routinely utilized in many federal districts and discusses the kinds of cases for which they are used or thought to be suitable. Part II comprises an empirical evaluation of ADR from 1978 to 1988 and compares ADR and non-ADR districts to measure whether ADR has been successful as a court management tool. ADR has not resulted in speedier resolution of federal civil cases, reduced backlogs, or decreased the incidence of civil trials. Part II concludes that ADR likely does not have other advantages warranting the broad-scale adoption in federal courts.

Part III addresses doctrinal issues surrounding implementation of ADR and considers whether federal district courts have the authority, under existing statutes or the Federal Rules of Civil Procedure, to impose mandatory ADR by local rule or judicial fiat. Part III contends that, with respect to many ADR procedures currently used in federal courts, inherent judicial authority, does not provides a sufficient basis to require litigants to engage in mandatory ADR by local rules or orders.

Part IV considers the Judicial Improvements Act of 1990 (the Act), Congress' effort to cope with the perceived litigation crisis in the federal courts. Part IV evaluates if the Act can be interpreted as expanding federal district courts' authority to implement mandatory ADR programs as a form of case management and then assesses whether and how federal district courts ought to utilize ADR programs as encouraged by the Act.