Document Type

Article

Publication Date

1996

Abstract

Like any trend, ADR has its skeptics and even some opponents. Considerable debate exists regarding the degree to which the increasing ADRization of traditionally judicial activity amounts to triumph or tragedy, a point well-illustrated by the past Schwartz Lectures. In the 1993 Schwartz Lecture, Professor Laura Nader described the ADR movement as a byproduct of society's attempt to suppress or conceal uncomfortable conflicts. In the 1994 Lecture, Professor Judith Resnik essentially concluded that the modern ADR movement has brought a regrettable de facto closing of the court house (or at least raised barriers to entry) and replaced reflective decision-making about claims and controversies with mere dispute processing. In the 1995 Lecture, Judge Jack B. Weinstein recognized and seemed to share many of Resnik's concerns, but essentially put forth a more optimistic view of the increasing hybridization of American adjudication. My assessment falls somewhere between their theses but also differs in ways apart from the degree to which one celebrates or mourns the decline of traditional adjudication. Like others, I regard the Nader and Resnik theses as too pessimistic. Although it may be a bit unfair to label them “litigation romanticists” (as have some commentators), they may overestimate the accuracy, fairness, and wisdom of traditional adjudication. But Resnik's analysis in the 1994 Schwartz Lecture and other writings, which consistently highlight the dark side of the ADR movement (and the general move away from adjudication), serve as an antidote to ADR band-wagonism and should give reasonable observers pause before rushing to dismantle the existing judicial structure. But even if Resnik's criticisms of the trend toward what might be termed “dis-adjudication” are correct, judicial adaptation to the Zeitgeist on which the ADR movement rides will probably be a more productive means of preserving core adjudicatory functions than would a strategy of massive resistance or despair.

Publication Citation

11 Ohio St. J. Dis. Res. 297 (1996).