Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication

Abstract

At the end of each year, newspapers do "round ups" of events, attempting to summarize and to take stock of what has transpired over the preceding twelve months. As the end of a century approaches, the impulse for assessment grows greater. We have the luxury, the obligation, or the conceit of contemplating a goodly period of time, to ask the questions inscribed on the famous Gauguin painting: "Where do we come from? What are we? Where are we going?" In this lecture, I place those questions in the context of alternative dispute resolution ("ADR") and adjudication, in the hopes of gaining insights into the future of adjudicatory procedures as we approach the end of the twentieth century. Below, I map both the changing attitudes toward ADR and the claims made on behalf of ADR, as well as changing attitudes toward adjudication and its attributes. As the title for this lecture forecasts, my review prompts me to be less optimistic than others about the array of options that are and will be available to litigants seeking decision making from the state. The assumption of many proponents, that ADR will increase the options available to litigants within the publicly financed system, may not be borne out. As the state makes alternative dispute resolution its own, both ADR and adjudication are being reconceptualized. As we proceed into the next century, the commitment to twentieth century style adjudication is waning. In this interaction, we may soon find ourselves with a narrower, not a richer, range of forms of dispute resolution.