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The ADR debate: efficiency before justice?

When people talk about changing the legal system, they almost always talk about alternative dispute resolution. ADR is often touted as a panacea for the system's perceived ills. The SMU Law Review from Southern Methodist University devoted its summer issue to this debate.

An ADR system that preserves citizens' rights and seeks just results has an important role to play We should be open to proposals for voluntary, nonbinding ADR that does not infringe the constitutional right to trial by jury and that keeps the parties on a level playing field.

The problem with the current discussion is that few ADR boosters speak in concrete terms about how the system would work. Even serious commentators who presumably value the civil justice system are short on specifics. ADR means different things to different people. So before jumping on the bandwagon, responsible lawyers--sworn to uphold the Constitution and its amendments--must consider the proposals' goals and the motivations of those who promote them.

The ADR movement has grown out of a general concern that our courts are burdened with too many cases and not enough resources. (Unfortunately, we underfund the courts and then proclaim that they aren't getting their work done. Or corporate cases devour court time, and then the corporations complain about court backlog.) Some commentators are so fixated on the mythical "litigation explosion" that they brush aside a critical question: Will an alternative system produce fair results?

ADR'S goal should be the same as litigation's: to secure justice. Some proponents, however, seek merely to reduce the number of lawsuits and citizens' access to the jury. Indeed, ADR zealots proceed from the notion that if a dispute ends up before a jury in a courtroom, the system has failed. This view of ADR is misguided--even dangerous.

I, too, would like to see fewer lawsuits. I would like to see safer consumer products and a cleaner environment. I would like to see workplaces free of hazards and medical care administered competently. When innocent victims bring just claims, I would like to see them settled justly. In short, the best way to reduce litigation is to reduce the need for it. Erecting cost-increasing roadblocks like mandatory ADR is not the proper method.

Sometimes claims must be heard by juries. When that happens, innocent victims should not be burdened or penalized for pursuing their rights. The jury is not the problem. Indeed, for those with nowhere else to turn for justice, the jury is the solution.

I am firmly committed to the principle that ADR must not eliminate or inhibit the right to trial by jury. Unfortunately, some prominent voices are calling for efficiency at the expense of justice.

In an SMU Law Review article, Judge Robert Parker of the Eastern District of Texas criticizes ADR programs for not going far enough to prevent jury trials. Parker, who chairs the Committee on Court Administration and Case Management of the U.S. Judidal Conference, believes that ADR should carry a "presumption of finality." In his view, litigants who want a jury trial should have to prove they deserve it through a cost-benefit analysis that would justify spending "additional litigant and judicial resources' on their cases.

In Parker's ADR universe, "the tradionally `alternative' forms of civil dispute resolution assume the role of the institutionally routine, and the traditionally routine form of civil dispute resolution [the jury trial] ascends to its appropriate place as the institutionally exceptional."

How did we reach a point in the debate where every trial can be viewed as a failure of the system? When an aggrieved citizen pursues his or her rights before a jury in a court of law, how has our system failed? That is our system, and we should celebrate it. To the Founders, the jury box was as central to democracy as the ballot box.

In an eloquent response to Parker in the same issue of the law review, judge G. Thomas Eisele trumpets that theme. Eisele, senior judge of the Eastern District of Arkansas, says justice must not be sacrificed at the altar of efficiency:

I view the Article III federal district

court as something very special--the

place where real trials are conducted,

the truth determined, rights vindicated,

and justice obtained. Justice--not

compromise, not efficiency, not cost

effectiveness, but justice. There ought

to be a place where justice, and justice

alone, controls and defines the parameters

of permissible procedures--where

one is not forced to submit to

something less than due process, even


Courtrooms are indeed special places. They should remain open to every citizen who wishes to present a case to an impartial jury. The kind of ADR system trial lawyers can support will help people resolve their disputes justly without diluting basic rights or imposing unequal burdens. The elimination of rights--or the imposition of procedures designed to inhibit those rights (even when touted by federal judges)--will never be an acceptable way to reduce litigation.

Not all ADR proposals are created equal. Let us proceed in this debate with open minds, healthy skepticism, and firm commitment to preserving the Seventh Amendment. Let us not be led by the misguided assumption that a jury trial is a failure of the civil justice system. Indeed, it is a celebration of democracy.
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Copyright 1993, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Title Annotation:alternative dispute resolution
Author:Nace, Barry J.
Article Type:President's Page
Date:Dec 1, 1993
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