To follow-up from Josh’s post, the legal profession is unstoppably headed toward ADR, but it’s not going to be whiny kids in pro rep that get us there.  As usual — it’s about the money.  But it’s also about the privacy.

First, ADR is a historically misunderstood term.   “Alternative Dispute Resolution” is not the same thing as “Arbitration.”  ADR generally refers to the class of non-binding concillatory efforts by two parties that voluntary attempt to resolve their dispute (including mediation and negotiation).  By contrast, the hallmark of Arbitration is that the judgment is binding and enforceable in court, but there is no merits appeal and recourse to the court is strictly limited.  Indeed, the Supreme Court has been emphatically supportive of a national policy favoring arbitration, and has bent the rules of contract freedom to ensure that those who want a recourse to arbitration can have it (eliminating contract defenses is why any clickwrap or credit card contract you sign gets you to arbitraiton even though the K is adhesionary).

The federal courts are crowded.  There’s a concept called the “Vanishing Trial” phenomena which tracks the dramatic increase in federal court filings with a correspondingly dramatic decrease in the number of cases that actually go to trial.   There a good article by Patricia Lee Refo, Chair of the ABA Section on Litigation (PDF) on some of the issues that result from this decline in trials:

I, for one, am a true believer in the adversary system and the jury trial in particular. The jury trial—with all of its faults—is democracy and self-governance in action. Beyond the passive act of voting, jury service may be the only opportunity most citizens have to participate in any aspect of government. The studies I’ve seen show that, on average, most jurors work very hard to do the right thing, and leave their jury service feeling good about their experience and about the justice system. In a democratic society, that matters. And the cost of losing that citizen participation in government is impossible to calculate.
The privatization of dispute resolution has a host of consequences. The pleadings, testimony, documents—and the result—are shielded from public view. Indeed, that is one of the reasons litigants turn to private dispute resolution in the first place. Neither the public nor the press has a seat in the private arbitration courtroom. Arbitration decisions contribute nothing to the development of the common law. There is anecdotal evidence that, in some areas, the siren song of private arbitration is affecting the bench because judges, underpaid almost everywhere, can earn so much more by
leaving the bench to open their own practice as a “neutral.” Moreover, the private judge has none of the protections of an independent judiciary and is therefore subject to pressures from which a judge with life tenure is immune. And in my experience, the private neutrals selected in significant  commercial matters do not reflect the same diversity as the judiciary.

I think she makes some good points, especially about the problems that result when causes of action like antitrust, Title VII discrimination and RICO can be privately litigated with no public record.  A good argument can be made that Congress intended these causes of action to be conducted in an adversarial — and therefore public — venue.  Antitrust and related claims especially implicate the Private Attorneys General concept.

There’s a law review back and forth between Mark Galanter and some other academics that’s worth checking out.  Galanter published some great data on the vanishing trial concept, some of which is reproduced in that ABA article.

In federal courts, the decline in trials has been steep and dramatic. In 1962, there were 5,802 civil trials in the federal courts and 5,097 criminal trials, for a total of 10,899. In 1985, total federal trials had risen to 12,529. By 2002, however, trials had dropped to 4,569 civil trials and 3,574 criminal trials. Thus, our federal courts actually tried fewer cases in 2002 than they did in 1962, despite a fivefold increase in the number of civil filings and more than a doubling of the criminal filings over the same time frame. In 1962, 11.5 percent of federal civil cases were disposed of by trial. By 2002, that figure had plummeted to 1.8 percent

So if I’m Best Buy, a large employer who has 20,000+ (?) employees nationwide with X number of sexual harassment lawsuits per year it’s likely in my interest to have a binding arbitration contract in employment contract.  All the dirt about my company stays private and it ends up being less expensive because it takes so long to get to trial because the federal docket is so crowded.

I get that the legal profession is too “adversarial” for certain people — but that’s the whole point.  With conflict comes the need to defend your client (and theoretically the truth will out).

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