When it comes to resolving disputes, “Alternative dispute resolution [ADR] is increasingly becoming the norm rather than the alternative,” remarked Dean Matthew Diller to an audience of law students and ADR practitioners. In recent years, many people have chosen to resolve disputes through mediation and arbitration rather than through traditional litigation, which can sometimes be more rigid, time-consuming, and expensive.
Legal scholars and ADR professionals had gathered at Fordham Law School on November 1, 2019, for a day-long symposium to discuss issues including diversity in ADR practice, online dispute resolution, and cross-cultural perspectives. The event, entitled “Achieving Access to Justice Through ADR: Fact or Fiction?” was hosted by the Fordham Law Review, Fordham Law’s Conflict Resolution and ADR Program, and the National Center for Access to Justice at Fordham Law. The event is one of the annual events of Fordham Law’s A2J Initiative.
In the first panel, “Perspectives on Justice,” National Center for Access to Justice executive director and moderator, David Udell, invited the panelists to consider the most fundamental questions of fairness that are at stake with respect to ADR, including by asking them to define the concepts of “access” and “justice” they rely on in their work.
Udell, the founder and executive director of the National Center for Access to Justice, suggested a definition of access to justice for the panel use as a comparison point when considering the power and potential of ADR: “People should know their rights. They should be able to assert their rights. There should be a neutral and non-discriminatory process—formal or informal—that can determine the facts, apply the law, and enforce the result.”
Ellen E. Deason, law professor at University Moritz College of Law, highlighted the potential for ADR to produce results that are, in some instances, better than those that might be produced by a court directly applying the law: “I think that many of the mediation and arbitration values support the possibility of moving results of a dispute away from a court outcome and toward a different perception of justice.” She also remarked that while “justice” might turn out to be different than the results produced by a court, it’s not as simple as the two parties “getting what they want.”
Julie Macfarlane, law professor at the University of Windsor Faculty of Law, said she tends to focus more on “access” issues in access to justice. “In the US and in Canada, more than half of the people who come to family court come without lawyers,” she observed. “There is a profound systemic bias against people who represent themselves and a real unwillingness to see them as equal players in the legal system.”
Why are so many people coming to court without lawyers? “People cannot afford the cost of private legal services, and we can’t pay for public legal assistance for every person who can’t afford a lawyer,” Macfarlane said.
But just as civil litigation is often suspiciously opaque to those proceeding without a lawyer, so too are court-related ADR processes.
“What we don’t have now is any real strategy or plan for how we train, how we educate and prepare members of the public who are coming to mediation or arbitration or any other dispute resolution process without counsel,” Macfarlane noted.
Hon. Wayne D. Brazil, a retired US magistrate judge who is now a mediator and arbitrator with JAMS (formerly Judicial Arbitration and Mediation Services), echoed this sentiment, remarking, “The civil justice system is deeply alienating if you’re not a sophisticated repeat player.” He added that not only do many parties come to civil court without representation, but in areas like Southern California, many do not even speak English, putting them at an additional disadvantage.
Brazil and Michael Z. Green, law professor and director of the Workplace Law Program at Texas A&M University School of Law, then highlighted the importance of diversity in ADR and the need for women and people of color to be heard by someone who they would perceive as having an understanding of their background and needs. Qualifying this claim, Green explained, “I’m not suggesting the arbitrator has to look like you, you just need a system where that could be possible.”
Green then raised issues of potential bias in arbitration and cited his forthcoming paper, which proposes a system he calls “arbitrarily selecting diverse arbitrators.” In most arbitrations, parties will select the arbitrator, and will often choose one they feel will be most likely to support them. “I want to remove that component from the equation by making the selection of arbitrators resemble how you [are assigned]a judge in a federal court. You don’t know who that judge is.”
There was a consensus among the panelists that addressing a lack of access to basic information and to legal assistance is key to improving the odds of those who must advocate for themselves. Green and Macfarlane both argued for a more holistic support system, in which lawyers and mediators collaborate with mental health professionals, financial specialists, and housing resources. Said Macfarlane, “We need to think very seriously about the kinds of support that we offer people without representation to allow them to be able to participate.”