Criticism of the Alternative Dispute Resolution Mechanisms
By Sarah-Jane Tchakerian
Criticism is not the enemy, but rather the means of promoting improvement.
Many companies, from micro to large enterprises, and natural persons have boarded the Alternative Dispute Resolution (ADR) train.[1] Each year, lawyers are taking the steps to encourage the opt for non-litigious methods of resolving legal disputes.[2] It is evident that ADR continues to grow in popularity among the different fields of law.[3] However, are these “Secret Tribunals”, i.e. mediation and arbitration, the better alternative to litigation?
Between 1984 and 1992, certain scholars expressed their concern about the impacts of informalized and privatized dispute resolutions upon societal “outsiders”, such as racial minorities, women, and the poor.[4] In other words, they claimed that ADR fails to protect those traditionally of lesser power in the society. Those critics worried about situations where the parties to the dispute were of unequal power and the decision-makers were not constrained by public scrutiny or formal records.[5] Trina Grillo, a law professor at the University of San Francisco, points out that the lack of controls over mediator/arbitrator bias has led the decision-makers to abuse their powers and act on their own prejudices.[6] On the contrary, this is less likely in the formal structure of an adjudicatory type setting whereby bias, injustice, and inequality tends to be suppressed.[7]
In addition, Brayant G. Garthy highlights how ADR, namely in the field of trade and commerce, takes away the public eye from issues that can eventually directly affect them.[8] The parties before an arbitrator campaign only for their sole interests and the arbitrator is not mandated for more than that.[9] It is said that ‘when two traders meet, their topic will be how to hike the prices’.[10] The lack of presence of all stakeholders in an arbitration process is alarming because of its potential to bring alteration in public life.[11] Hence it can be interpreted that ADR is a method to attain corporate equity, rather than human equality.[12]
Moreover, ADR has been hailed as a solution to court congestion, delays, procedural inconveniences, as well as an inexpensive panacea. [13] However, in reality, the argument of ADR being a quick, straightforward, and less expensive procedure is not entirely true.[14] For example, the expenses involved in appointing a specialist in the field(s) of dispute and the fees of advocates who represent the parties are by no means less than that for litigation.[15] Furthermore, since the legal grounds to challenge an arbitration decision are very demanding, with a strong presumption in favour of the arbitrator’s ruling, the lack of an appeal procedure can appear to be another hindrance to rights enforcement.[16] In addition, Owen M. Fiss, a Sterling Professor Emeritus at Yale Law School, asserts that ADR trivializes the remedial dimensions of lawsuits and mistakenly assumes judgement to be the end of the process.[17] In other terms, it supposes that the decision-maker’s duty is to declare which party is right and which one is wrong, and that this declaration symbolizes the end of the decision-maker’s involvement.[18] However, judgment is not often the end of a lawsuit but just the beginning and the involvement of the decision-maker may need to continue.[19] ADR cannot provide an adequate basis for such necessary continuing involvement and thus is no qualitative substitute for litigation.[20]
Is ADR then just an empty promise?
In conclusion, it can be understood that many scholars can claim that ADR decreases the access to justice for the poorer litigants, precisely the people this mechanism was designed to help.[21] Moreover, the critics contend that ADR is not appropriate for all types of cases and participants, and emphasize the need for continued access to litigation.[22] Eric Yamamoto, professor of law and social justice, questions whether the establishment of the ADR mechanism is just because of the "failing faith" in litigation which has led to the pressing need to embrace an encompassing alternative and that all who do not scramble aboard the ADR train will be left behind.[23] Therefore, it can be argued by many that ADR’s efficacy is, in the words of Law Professor Kim Dayton, a “myth”.[24]
[1] Eric K. Yamamoto, ‘ADR: Where Have the Critics Gone?’ (1996) 36 Santa Clara Law Review <https://core.ac.uk/download/pdf/32299762.pdf> accessed 19 October 2020.
[2] ‘Alternative Dispute Resolution: Why has it Become so Popular?’ (HMC Lawyers, 24 November 2017) <https://hmclawyers.com/alternative-dispute-resolution/alternative-dispute-resolution-become-popular/#:~:text=ADR%20is%20likely%20here%20to,become%20qualified%20mediators%20and%20arbitrators> accessed 19 October 2020.
[3] ibid.
[4] Eric K. Yamamoto, ‘ADR: Where Have the Critics Gone?’ (1996) 36 Santa Clara Law Review <https://core.ac.uk/download/pdf/32299762.pdf> accessed 19 October 2020.
[5] ibid.
[6] ibid.
[7] ibid.
[8] Jasmine Joseph, ‘Alternate to Alternatives Critical Review of the Claims of ADR’ (2011) NUJS Working Paper Series 1/2011 <https://nujs.edu/workingpapers/alternate-to-alternatives-critical-review-of-the-claims-of-adr.pdf> accessed 19 October 2020.
[9] ibid.
[10] ibid.
[11] ibid.
[12] Ugo Mattei and Laura Nader, Plunder: When the Rule of Law is Illegal (1st edn, Blackwell Publishing 2008).
[13] Lisa Bernstein, ‘Understanding the Limits of Court-Connected ADR: A Critique of Federal Court-Annexed Arbitration Programs’ (1993) 141/6 University of Pennsylvania Law Review <https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=5181&context=journal_articles > accessed 19 October 2020.
[14] Jasmine Joseph, ‘Alternate to Alternatives Critical Review of the Claims of ADR’ (2011) NUJS Working Paper Series 1/2011 <https://nujs.edu/workingpapers/alternate-to-alternatives-critical-review-of-the-claims-of-adr.pdf> accessed 19 October 2020.
[15] ibid.
[16] Bryant G. Garth, ‘Tilting the Justice System: From ADR as Idealistic Movement to a Segmented Market in Dispute Resolution’ (2002) 18/4 Georgia State University Law Review <https://readingroom.law.gsu.edu/cgi/viewcontent.cgi?article=1927&context=gsulr> accessed 19 October 2020.
[17] Eric K. Yamamoto, ‘ADR: Where Have the Critics Gone?’ (1996) 36 Santa Clara Law Review <https://core.ac.uk/download/pdf/32299762.pdf> accessed 19 October 2020.
[18] Stephen B. Goldberg, Frank E.A. Sander, Nancy H. Rogers, Sarah Rudolph Cole, Dispute Resolution: Negotiation, Mediation, Arbitration, and Other Processes (7th edn, Wolters Kluwer 2020).
[19] ibid.
[20] ibid.
[21] Lisa Bernstein, ‘Understanding the Limits of Court-Connected ADR: A Critique of Federal Court-Annexed Arbitration Programs’ (1993) 141/6 University of Pennsylvania Law Review <https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=5181&context=journal_articles > accessed 19 October 2020.
[22] Eric K. Yamamoto, ‘ADR: Where Have the Critics Gone?’ (1996) 36 Santa Clara Law Review <https://core.ac.uk/download/pdf/32299762.pdf> accessed 19 October 2020.
[23] ibid.
[24] ibid.