This article examines the contradictory responses of critical legal theory to alternative dispute resolution (ADR) mechanisms. By tracking the changing character of the responses this article identifies significant developments over the last twenty-five years in the methodology and conclusions of critical legal scholarship.
The analysis finds that feminist critical approaches to ADR differ markedly from the first-wave (from the mid-1970s until the mid-1980s) critical accounts. They are not only more pragmatic than earlier critical theorists; feminist accounts advocate solutions that are in direct conflict with those of first-wave theorists. Where feminists embrace ADR, first-wave critical theorists express grave concern. Yet this divergence remains largely unacknowledged.
The article argues that this discontinuity in critical scholarship serves to indicate just how successful and total the attack on formality, championed by first-wave scholars, was. Furthermore, the shift in critical scholarship may be explained by critical feminist scholarship's adoption of the individual as its unit of analysis, while retaining the critiques of formality it had inherited from first-wave scholarship. The result is a more personalized conception of conflict, rights and remedies.
"The primary business of informal institutions is social control. Consequently, the central question must be: Do they expand or reduce state control? The authors in this volume agree... informal justice increases state power."1
- Richard Abel
"...I had come to see [mediation] as a necessary corrective to the pain and draconian results of courts, with the promise of processes we could see as enriching, empowering, and dare I say, humanely transformative."2
- Carrie Menkel-Meadow
The quotations above are emblematic of an interesting and little noted divide among scholars engaged in critical analysis of the law. Although these scholars come out of a similar tradition, the quotes provide a sample of their dramatically diverging opinions on the rise of alternative dispute resolution. Though striking, the divergence has not been acknowledged or addressed, not even by the scholars themselves. This article examines the divide, finding that early critical legal scholars raised fundamental concerns about the proliferation of informal legal mechanisms, but that this initial critique faded away and was replaced by critical scholarship supportive of ADR, including among feminist scholars. What accounts for their conflicting attitudes to ADR? The article argues that this shift results from a significant methodological distinction between the two moments of critical legal scholarship, one that has consequences both for their overall assessment of the ADR movement and what it means to be a critical scholar of law.
A. The Rise of Alternative Dispute Resolution
In 1976 then-Chief Justice Warren Burger helped to organize a national conference on "The Causes of Popular Dissatisfaction with the Administration of Justice."3 As is evident from the conference title, the high-profile event took as its starting premise the existence of widespread disillusionment with the legal system. The organizers planned to consider and disseminate new methods that could address what they perceived to be the growing problems of the court system.4 This conference and, in particular, the paper presented there by Frank Sander, "Varieties of Dispute Processing," are often considered the official start of the alternative dispute resolution (ADR) movement.5 Sander advocated an exploration of "ways of resolving disputes outside the courts."6 His theory was that different dispute resolution mechanisms would be effective at resolving different types of disputes. Support for ADR, less formal than the institutions of the court and trial, gathered momentum in the late 1970s and 1980s. The federal government became involved in funding and establishing ADR procedures in the 1970s, including community justice pilot projects. …