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Court ADR 25 Years After Pound: Have We Found a Better Way?
Brazil, Wayne D.. Ohio State Journal on Dispute Resolution, 18(1): 93-149, 2003
This article takes a retrospective and prospective look at the field of ADR. The author states that ADR should be considered as one of many ways to resolve a dispute. In other words, ADR has a place in the delivery of justice and it is important to know when to use it. He says that court ADR promises many things, but two are most significant: (1) opportunity and (2) process integrity. For the promise of process integrity, he sets forth challenges that court ADR programs face to keep this promise.
The article also discusses the question of whether the addition of ADR has improved the administration of justice. In terms of what constitutes the administration of justice, the author believes it can be a matter of efficiency, feelings about fairness and about using the process, to what extent the process permits or encourages party participation, the extent to which the process contributes to the parties' understanding of their situation and their options, and the parties' perception of the justice system. The author goes on to explain the difficulty of measuring the aggregate effects of court ADR programs and the need to work towards generating reliable empirical assessments. He then questions whether the aggregate results should be a primary concern when the primary promise of court ADR is to create "opportunities through respect-worthy processes." In other words, shouldn't it be equally important to be concerned about findings that reveal that a large percentage of parties who participated in an ADR program have a greater respect for the justice system?
After discussing the importance of understanding that there are differences between programs and the quality of studies, the author provides some findings of court ADR programs. He discusses what has and what has not been gained. In terms of what has not been gained, he sets forth what he believes are the underlying sources of resistance to expanding court ADR; these sources of peril derive from our relationships with legislatures, judges, practicing lawyers, and lawyers who are interested in making a living as an ADR neutral, or who already do make their living this way. Finally, he discusses perils with sources that are internal, meaning within the community of supporters of court ADR.
Publisher or Resource Origin
Ohio State Journal on Dispute Resolution