"Wait a Minute. This Is Where I Came In." A Trial Lawyer's Search for Alternative Dispute Resolution

Article excerpt

Steven H. Goldberg*

The first question about alternative dispute resolution (ADR) is: "Alternative to what?"

As a latecomer to the ADR dialogue, I first heard this question at the initial session of the Hewlett Socio-Legal Institute on Dispute Resolution, in the Spring of 1993. Twenty-five of us-social psychologists, judges, social workers, business administrators, labor mediators, practicing lawyers, communications teachers, law teachers, social scientists, graduate students, dispute resolution professionals, and myself, an about-to-be-ex-law dean-were spending our first of thirty days together in an Ohio State University Law School classroom. We were there to discuss ADR with Deborah Hensler, Carol King, Craig McEwen, Nancy Rogers, the late Maurice Rosenberg, Frank Sander, and Gerald Williams, among others. Most of the Institute attendees knew our leaders were among the giants in the field. One of us had no clue he was about to view the landscape of the ADR movement with some of the very best.

One of these giants, I do not remember who, began the opening session with "the first question about ADR," no doubt as a teaching device more than an inquiry for which the answer was truly in doubt. I was the only person in the room who knew almost nothing about ADR, but even I knew the answer. So did everyone else. Of course, all of our answers were somewhat different, reflecting our different experiences, professional backgrounds, socio-political philosophies, and aspirations. Except for me, the Institute participants had one important thing in common, each considered herself or himself a card-carrying member of the ADR movement. 1 Four years after that June morning in Columbus, following some ADR practice and reading,2 I, too, teach an ADR course and I, too, use "the first question about ADR" as the pathway into the subject. But after four years of searching, I have a different answer to that first question than the answer I knew, when I knew nothing about the subject.

My original answer to the question "Alternative to what?" was "the adversary system." ADR held out the promise of a better way than the adversary system for handling at least some of the inevitable friction in society. I could not define "better" precisely, but it contained notions of faster, cheaper, less contentious, less aggravating, or more likely to leave the parties talking to each other when the process was over.

My current answer to the question "Alternative to what?" is that ADR is not an alternative. Alternative Dispute Resolution courses have become Dispute Resolution. In this society, dispute resolution is the adversary system. My unhappiness with the current answer is the reason for this essay and for its suggestion that the ADR movement, and particularly the law teachers within it, think again about the direction it should take.

In the classic sense of the outsider looking in, the ADR movement has made it to "in" status. During this decade, its various forms have become commonplace in many American courthouses. The movement is snowballing, as the number of forms and the number of courthouses grows every year. A decade ago, only a few law schools offered a course in ADR. Today, dispute resolution has become a staple elective in most schools (just as tax, corporations, and other popular electives). Course books expand as the courts develop more of what Professor Carrie Menkel-Meadow has called "The Law of ADR."3 Can a Restatement of the Law of ADR be far behind?

I liked it better when ADR was not fast becoming part and parcel of society's main dispute resolution apparatus. The most important word in "ADR movement" was "alternative." It was the soul of the idea, its substance. Today, the form is succeeding, but the substance is dying. More precisely, the substance is dying because the form is succeeding. The alternative in ADR has become a victim of its own success.

Of course, many in the ADR movement will disagree. …