Academic journal article Texas Journal of Women, Gender, and the Law

Critical Conflicts between First-Wave and Feminist Critical Approaches to Alternative Dispute Resolution

Academic journal article Texas Journal of Women, Gender, and the Law

Critical Conflicts between First-Wave and Feminist Critical Approaches to Alternative Dispute Resolution

Article excerpt


"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.7 Other innovations ensued, from court-annexed arbitration, to mandatory mediation for custody battles. Some support for the development of ADR mechanisms stemmed from a belief that litigation was increasing and that the courts were unable to handle the changes in and increased demand for litigation. While the actuality of this impending "litigation crisis" has been challenged,8 the feeling of crisis helped spur efforts to decrease the volume of cases in the courts by adopting informal, less law-like, means. Much advocacy for ADR went further, seeing ADR not merely as a measure necessitated by circumstance, but actually as a better means of resolving disputes.9

B. Apparent Affinities Between ADR and Critical Legal Scholarship

In the year following the conference founding the ADR movement, a group of left-leaning critical scholars established the Conference on Critical Legal Studies.10 While the political and practical forces driving each movement may have differed substantially, both events shared certain concerns about formality and adjudication. Indeed, common to both movements was a sense that formal legal processes were inadequate to address and appropriately resolve disputes (or conflict) in society. …

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