Article by Edward Brunet
This article focuses on a few selected qualitative justice values particularly crucial to understanding the relationship between ADR and conventional litigation. Any analysis of dispute resolution, including ADR, should give careful consideration to how well the method achieves these qualitative concepts:
(a) Substantive legal principles: Proper deference to substantive legal norms is required. A process that ignores substantive legal rules could (1) frustrate the intent behind substantive legal norms; (2) injure third parties not present as dispute participants; (3) cause existing but ignored substantive norms to atrophy and become inefficacious; and (4) elevate procedural over substantive norms.
(b) Outcome accuracy: The results or outcome of disputes must be accurate to be just. The need for decision accuracy embraces both disputed issues of fact and unsettled questions of law.
(c) Speedy resolution of disputes: A 100% accurate judgment that consumes an inordinate amount of time constitutes a poor quality result. Quality justice requires speedy, efficient decisions. The qualitative value of speed has a clear relationship to cost; delayed, elephantine litigation is costly, both in the out-of-pocket attorneys' fees and the opportunity cost of the delay itself.
(d) Objective and informed representation essential to a ‘balanced’ dispute: Disputing participants need objective and informed representation to resolve conflict. Disputes should be resolved with representation of equivalent ability; this creates a balanced dispute. Counsel can provide such quality representation. While participants should have clear and regular involvement in the disputing process, claims that counsel should be replaced by participants carry great possibilities of imbalance.
The body of this article will amplify each of these selected aspects of the quality of justice.
This article evaluates ADR and traditional litigation as competitive modes of dispute processing and attempts to identify the jurisprudential impact of a major shift from litigation to disputing primarily through ADR. Part I provides the needed definitional focus regarding the meaning of ADR. It examines the shared characteristics of the individually unique ADR mechanisms and gives the reader a foundation for generalizations made later in the article. Part II explores the uneasy relationship between substantive law and ADR. Part II examines claims that ADR is superior in ‘quality’ to traditional litigation because ADR can fashion ‘creative’ results and can encourage compromise by ignoring positive law. Part II is predicated upon a belief that quality justice requires disputes to employ integration of substantive norms. It focuses upon the functions of substantive law and conventional litigation and emphasizes the work of jurisprudence scholars concerning the guidance purposes of law. The section questions whether the rush to compromise, a characteristic of numerous ADR methods, will advance the important policies underlying substantive law. Part III explores some possible procedural shortcomings of ADR. It isolates and compares procedures used by ADR and conventional litigation and stresses the significance and values of a system of dispute resolution that produces accurate results. Part III analyzes the efficacy of discovery, ‘live’ evidence, and judicial compulsion procedures and questions whether disputes can be accurately resolved without employing techniques that are found in formal court litigation but eschewed in ADR. Part IV examines the annexation by courts of ADR procedures and questions the degree to which courts should systematically use ADR procedures.
About the Author
Edward Brunet. Professor of Law, Lewis and Clark Law School. B.A., Northwestern U., 1966; J.D., U. of Illinois, 1969; LL.M., U. of Virginia, 1972.
Citation
62 Tul. L. Rev. 1 (1987)