![Page 1: ADR How did we get here?. Increase in court filings 1930 -1970 Increase demand due to increase population, growth in economy, greater regulation, access](https://reader036.vdocuments.us/reader036/viewer/2022083008/56649efb5503460f94c0e093/html5/thumbnails/1.jpg)
ADRHow did we get here?
![Page 2: ADR How did we get here?. Increase in court filings 1930 -1970 Increase demand due to increase population, growth in economy, greater regulation, access](https://reader036.vdocuments.us/reader036/viewer/2022083008/56649efb5503460f94c0e093/html5/thumbnails/2.jpg)
Increase in court filings
• 1930 -1970• Increase demand due to increase population,
growth in economy, greater regulation, access by women & minorities
• 1970’s• Expansion of remedies: tort, civil rights,
consumer, environmental• Expanded legal services: legal aid, public interest• Law seen as agent of change & reform
![Page 3: ADR How did we get here?. Increase in court filings 1930 -1970 Increase demand due to increase population, growth in economy, greater regulation, access](https://reader036.vdocuments.us/reader036/viewer/2022083008/56649efb5503460f94c0e093/html5/thumbnails/3.jpg)
The Vanishing Trial
* Long term decline in # of federal trials
1962- 11.5 % of all cases filed
terminated in trial
2004 – 1.7 % of cases terminated in
trial
* Similar results in state court where
most trials are held
WHY?
![Page 4: ADR How did we get here?. Increase in court filings 1930 -1970 Increase demand due to increase population, growth in economy, greater regulation, access](https://reader036.vdocuments.us/reader036/viewer/2022083008/56649efb5503460f94c0e093/html5/thumbnails/4.jpg)
Several Theories
• Concerted effort by those disadvantaged by the increase in litigation.
• “litigation explosion”
• Jaundiced view of legal system fueled by media
• Judges become active “dispute resolvers”
![Page 5: ADR How did we get here?. Increase in court filings 1930 -1970 Increase demand due to increase population, growth in economy, greater regulation, access](https://reader036.vdocuments.us/reader036/viewer/2022083008/56649efb5503460f94c0e093/html5/thumbnails/5.jpg)
Solution
• Curtail Remedies: “tort reform”
• De-regulate
• Privatize dispute resolution
![Page 6: ADR How did we get here?. Increase in court filings 1930 -1970 Increase demand due to increase population, growth in economy, greater regulation, access](https://reader036.vdocuments.us/reader036/viewer/2022083008/56649efb5503460f94c0e093/html5/thumbnails/6.jpg)
Resulting Changes
• Case management
• Mediation
• Divert to ADR
• Proliferation of ADR forums & professionals
![Page 7: ADR How did we get here?. Increase in court filings 1930 -1970 Increase demand due to increase population, growth in economy, greater regulation, access](https://reader036.vdocuments.us/reader036/viewer/2022083008/56649efb5503460f94c0e093/html5/thumbnails/7.jpg)
As a Result the role of courts has changed
• Assume jurisdiction
• Administer paperwork
• Adjudicate pre-trial disputes
• Manage dispute resolution in an orderly way
• Enforce decisions
![Page 8: ADR How did we get here?. Increase in court filings 1930 -1970 Increase demand due to increase population, growth in economy, greater regulation, access](https://reader036.vdocuments.us/reader036/viewer/2022083008/56649efb5503460f94c0e093/html5/thumbnails/8.jpg)
Other Theories on why there has been a move away from traditional litigation to
“alternatives”
• Expense
• Efficiency
• Better results?
![Page 9: ADR How did we get here?. Increase in court filings 1930 -1970 Increase demand due to increase population, growth in economy, greater regulation, access](https://reader036.vdocuments.us/reader036/viewer/2022083008/56649efb5503460f94c0e093/html5/thumbnails/9.jpg)
EXPENSE
• 1.5% of GNP• High transaction cost
– the “lump it” cases• Denial of access
![Page 10: ADR How did we get here?. Increase in court filings 1930 -1970 Increase demand due to increase population, growth in economy, greater regulation, access](https://reader036.vdocuments.us/reader036/viewer/2022083008/56649efb5503460f94c0e093/html5/thumbnails/10.jpg)
Adjudication
• Delay and Backlog• Inability to fashion
appropriate remedy• Expertise needed
![Page 11: ADR How did we get here?. Increase in court filings 1930 -1970 Increase demand due to increase population, growth in economy, greater regulation, access](https://reader036.vdocuments.us/reader036/viewer/2022083008/56649efb5503460f94c0e093/html5/thumbnails/11.jpg)
Fairness Concerns
• Gallanter- Why the “Haves” come out ahead
• Systemic gender Bias
![Page 12: ADR How did we get here?. Increase in court filings 1930 -1970 Increase demand due to increase population, growth in economy, greater regulation, access](https://reader036.vdocuments.us/reader036/viewer/2022083008/56649efb5503460f94c0e093/html5/thumbnails/12.jpg)
Non-Financial Burdens
• Emotional costs• Winner take-all
dilemma
![Page 13: ADR How did we get here?. Increase in court filings 1930 -1970 Increase demand due to increase population, growth in economy, greater regulation, access](https://reader036.vdocuments.us/reader036/viewer/2022083008/56649efb5503460f94c0e093/html5/thumbnails/13.jpg)
Concerns raised by Owen Fiss
![Page 14: ADR How did we get here?. Increase in court filings 1930 -1970 Increase demand due to increase population, growth in economy, greater regulation, access](https://reader036.vdocuments.us/reader036/viewer/2022083008/56649efb5503460f94c0e093/html5/thumbnails/14.jpg)
Other Concerns
• Bargaining moves from “shadow of law” to “shadow of settlement”
• Judges rely on experience, not authority
• “repeat players” advantaged
![Page 15: ADR How did we get here?. Increase in court filings 1930 -1970 Increase demand due to increase population, growth in economy, greater regulation, access](https://reader036.vdocuments.us/reader036/viewer/2022083008/56649efb5503460f94c0e093/html5/thumbnails/15.jpg)
The Advocates of ADR Respond
• Relieve Court Congestion• Enhance Community Involvement• Facilitate Access to Justice• Design more effective dispute resolution
mechanisms to increase party satisfaction ( procedural justice research)
• Reduce pervasive cynicism about lawyers and role of law in society
![Page 16: ADR How did we get here?. Increase in court filings 1930 -1970 Increase demand due to increase population, growth in economy, greater regulation, access](https://reader036.vdocuments.us/reader036/viewer/2022083008/56649efb5503460f94c0e093/html5/thumbnails/16.jpg)
Menkel-Meadow
![Page 17: ADR How did we get here?. Increase in court filings 1930 -1970 Increase demand due to increase population, growth in economy, greater regulation, access](https://reader036.vdocuments.us/reader036/viewer/2022083008/56649efb5503460f94c0e093/html5/thumbnails/17.jpg)
Choosing an Appropriate Dispute Resolution Mechanism
• Cost• Speed• Privacy• Precedent• Relationship• Need for vindication• Power Imbalance• Need for decision on past events• Need to compel participation/ enforce agreements• Need to avoid win/lose• Absence of clear legal entitlements• Premium on control by disputants
![Page 18: ADR How did we get here?. Increase in court filings 1930 -1970 Increase demand due to increase population, growth in economy, greater regulation, access](https://reader036.vdocuments.us/reader036/viewer/2022083008/56649efb5503460f94c0e093/html5/thumbnails/18.jpg)
Processes We Will Study
• Interviewing and Counseling• Negotiation• Mediation• Arbitration• Mini-trial• Med-Arb• Reference statutes- “Rent-a Judge”• Court-connected Processes- ENE, Summary Jury
Trial,
![Page 19: ADR How did we get here?. Increase in court filings 1930 -1970 Increase demand due to increase population, growth in economy, greater regulation, access](https://reader036.vdocuments.us/reader036/viewer/2022083008/56649efb5503460f94c0e093/html5/thumbnails/19.jpg)
Getting Started
• Interviewing Exercise