Mandatory Court-Annexed Alternative Dispute Resolution in the United States Federal Courts: Panacea or Pandemic?1

Article excerpt


It is almost exactly thirty years since the pivotal American Bar Association-sponsored Pound Conference, which heralded the modern era of alternative dispute resolution ("ADR") in the courts. At that Conference, Professor Frank Sander put forward the concept of the multi-door courthouse.2 Currently, ADR is increasingly an accepted tool of the practitioner both within and outside the court system. Attorneys now market their services in dispute resolution and not solely in trial practice or litigation. Pressure to offer litigation alternatives came initially from clients, but now pressure also comes from overwhelmed court systems and legislative mandates.

Given the rapid expansion of ADR in the United States and in international dispute resolution over the last thirty years, one might expect that an obituary for litigation is the only appropriate response to developments in this area, or, to reword a quote by William Shakespeare: "I come to bury [litigation,] not to praise [it]."3 However, my experience and biases lead me to a more nuanced, less pithy, more equivocal, and certainly less literary, statement:

I come to report on the purported demise of litigation, but before nailing the coffin shut, we need to reflect on the benefits litigation may provide in some cases and recognize that meshing litigation and ADR may yield unintended consequences that operate to the detriment of both the adversary process and ADR.

What else could one expect from a lawyer/academic? I confess-I am also a recovering litigator; I litigated full-time for eight years. Being an academic has afforded me the luxury of examining procedural rules and litigation processes and behaviors from the vantage point of the ivory tower. For the last decade I have also served as a pro bono mediator in the federal courts for the Eastern District of New York. These different roles and perspectives have not necessarily illuminated answers, but they have certainly provided questions worth further exploration.

Court-annexed ADR is now a settled fixture in federal courts and in many state courts in the United States, as well as in courts in countries around the world.4 However, just because a process has garnered widespread support does not mean that we should not continue to examine how well the process has worked.

Now that ADR is firmly entrenched in the litigation process, what are the benefits it has brought? Is engrafting ADR onto court process entirely a positive development? Are there any negatives? Do we have the necessary information to answer these questions?

Our inquiries should not focus on whether ADR is better than litigation. There is no argument that ADR offers much to disputants in a wide range of disputes. The advantages of a process that is more flexible, more party-directed, and does not require a zero-sum solution are readily apparent and do not need defense.5 Rather, our inquiry should focus on how, if it is, the courts are transforming ADR and how, if it is, ADR is transforming the court system. If we can address those questions, we will have a better understanding of what is transpiring. If we understand what is happening, we can make rational choices as to future programs and shape processes to achieve desired goals.6

This paper addresses the current state of mandatory courtannexed ADR in the United States federal courts. Part I provides a summary overview of how ADR has developed in the federal courts. Part II briefly describes the positions of the proponents of increased ADR in the courts and of those critical of ADR court initiatives. Part III outlines issues that remain to be addressed and suggests possible avenues for empirical research. The conclusion proposes that we maintain continuing oversight and scrutiny of the process and ADR processes designed to operate after the parties enter the courthouse. As others have warned, we may be inadequately factoring in the impact that our ad hoc development and incorporation of ADR practices into the courthouse may have on both the litigation process and ADR. …