Systematic Analysis in Dispute Resolution

By Stuart S. Nagel; Miriam K. Mills | Go to book overview
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Alternative Dispute Resolution in the United States: No Roses Without Thorns


In 1906 Roscoe Pound addressed the problems of the legal system in an article, "Causes of Popular Dissatisfaction with the Administration of Justice." Seventy years later, the Pound Follow-Up Conference was held, dealing with the same problems. It marked the beginning of the official reaction of contemporary legal professionals.

Former Chief Justice Burger has strongly supported the development of alternative means of dispute settlement. Congress and many state legislatures have witnessed legislative efforts to foster the development of nonjudicial remedies.

Meanwhile many concrete programs have mushroomed throughout the United States, in experimental or operational stage, dealing with an array of disputes of varying sizes and approaches.

All of these elements suggest the rise of a movement that justifies close attention. First, the phenomenon is a recent one, although related to previous innovations answering problems involved in the administration of justice. Second, it is of a pragmatic nature since it determines the opportunities and possibilities of various modes of dispute-processing. Rethinking and reorganizing the ways that conflicts are dealt with will affect not only the parties involved directly but will also have repercussions for the legal profession as a whole. Finally, the developments have caused new theories to burgeon.

This chapter will identify the major debate about alternative dispute resolution (ADR) by confronting and contrasting two main viewpoints. The first is the so- called common perspective that dominates in the media and the literature. Its authors, although coming from very different backgrounds, are united by their fervent enthusiasm for the alternative movement. The second, which lifts a warning


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