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Hamline Journal of Public Law & Policy




Increasingly, courts across the country are turning to non-judicial dispute resolution processes - "alternative dispute resolution" or "ADR" - to handle overwhelming caseloads.' Proponents of non-judicial processes state that ADR benefits courts and litigants by reducing the time between the filing and disposition of cases, saving judges' time so that they are available for the cases that really need them, saving money for the parties to the suit, and perhaps most importantly, increasing litigants' satisfaction with the manner in which their disputes are resolved.

A growing body of empirical evidence has begun to support the proponents' claims. A study of court-annexed arbitration showed greater litigant satisfaction with the process and more rapid termination of cases. Likewise, research in Hawaii and the Northern District of California has demonstrated high litigant and attorney satisfaction with court-annexed ADR programs. Most recently, the Office of the State Court Administrator in Minnesota released a report which compared adjudication with court-annexed mediation and arbitration. Mediation and arbitration scored higher than adjudication on every measure of client satisfaction.

Yet, a nagging tension exists. On one hand are harried judges who see "the promotion of informed and fair settlements [as] one of the most important aims of pretrial management" and view ADR as a useful, beneficial, even necessary settlement tool. These judges are joined by state and federal legislators who are concerned about the expense and delay which are hampering the courts. On the other hand are parties and attorneys who have consciously chosen the traditional litigation process.

Should courts be permitted to "sidetrack" these parties and their attorneys from traditional litigation? Or is ADR, in the words of a Pennsylvania court, simply a "[n]ew device" which is part of contemporary litigation, a device which must be used "to adapt the ancient institution of [trial] to present needs" and to make litigation "an efficient instrument in the administration of justice?'

Guidance on these questions is strikingly sparse, particularly in light of the courts' increasing experimentation with ADR. One commentator has noted that the rules, statutes, and cases dealing with this issue "constitute only a few 'dots' in a dot-to-dot line drawing which has yet to be completed." Of necessity, therefore, the analysis in this article will focus on the few cases addressing courts' authority to order the use of ADR and will describe the patterns that are beginning to emerge. Most of the cases involve court-ordered arbitration programs or orders to participate in summary jury trials. Challenges mounted against these processes have been based primarily on the seventh amendment guarantee of a right to a jury trial and charges that courts have exceeded the authority granted under Rule 16 of the Federal Rules of Civil Procedure (a very small number of challenges, not dealt with here, have been based on equal protection claims and other rules in the Federal Rules of Civil Procedure). Courts have used various standards to test the extent and limits of their authority but few limits on that authority have been revealed. With one notable exception, courts have strongly defended their right to order parties to use ADR.

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Hamline University School of Law

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