Professor Main argues that the modem ADR movement (and mediation in particular), rather than some (other) ideology, beget the pleading and summary judgment standards that exemplify contemporary practice and procedure in the fourth era in the history of American civil procedure. The other key reforms of the fourth era-the vanishing trial, the embrace of ADR, judicial case management and the pursuit of settlement by any means necessary-are more obviously tied to the modem ADR movement. Blame for all of the key fourth era reforms is thus traceable to the modern ADR movement. This, in turn, matters because it is generally accepted that the modern ADR movement had origins in both the political "left" and "right."
Part II describes the birth of the modern alternative dispute resolution movement in 1976. Part III locates the emergence of the modern ADR movement within the third era of civil procedure. Part IV establishes how the judicial establishment enthusiastically embraced ADR, including its anti-trial narrative. Part V explains how the fourth era reforms were an ineluctable systemic response to the abandonment of trials. Finally, the Conclusion addresses three criticisms of the thesis that Professor Main anticipates.
34 Ohio St. J. on Disp. Resol. 537 (2019).
Main, Thomas O., "Mediation: An Unlikely Villain" (2019). Scholarly Works. 1264.