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Compared to What?

by John Lande
May 2016

Indisputably

John Lande

My colleague, S.I. Strong, recently circulated on the DRLE listserv a link to a survey conducted in 2015 for the National Center for State Courts.  The survey involved a nationwide random sample of 1000 members of the public (actually registered voters).

This is a very respectable sample, especially considering that the reported findings are very similar to those conducted in 2012 and 2014.  In addition the findings are quite plausible and generally reflect what one might expect, so it seems likely that they are reasonably valid measurements of public opinion in the US.

Although public perceptions are important indicators about the functioning of the court system, they are subject to biases and should be supplemented with other indicators.  Most members of the public probably have little or no direct experience with the courts.  Much of what they “know” is based on news and entertainment media, which over-represent dysfunctions and real or supposed scandals.

It’s not news (or very entertaining) when the courts work properly, just as it’s not news when airplanes land safely.  Moreover, there have been campaigns to discredit courts – think about the McDonald’s coffee case – which become fodder for popular culture about a reputed litigation explosion of frivolous cases.  Empirical research provides little evidence of a flood of such cases, however.

Research based on views of professionals who regularly deal with the courts as well as analyses of independent researchers are important to provide a more complete perspective.  For the purpose of this post, however, it’s fine to focus on the NCSC data.

Which is Better: Food or Water?

The survey asked respondents whether they agree with the following statements.

“The court system is the best way to resolve disputes, because it protects individual rights and is accountable to the rule of law.”

“Alternative ways to resolve disputes, like mediation, are faster, cheaper, and more responsive to the needs of the people they serve than the court system.”

Apparently, respondents were forced to give a choice between these two statements.

The report is confusing about the proportions of responses, but apparently 30-43% agreed with the first statement and 54-64% agreed with the second statement.

Whatever the results, this is a horrible survey question (though it reflects the framing of the issue by many people in our field).  On reflection, most people would recognize that the correct answer is “it depends.”

For example, if you were in a dispute with someone who was willing to reach an agreement that satisfies your concerns, especially if you were going to have a continuing relationship, you would probably prefer negotiation or mediation.  On the other hand, if you were in a dispute with a large corporation that doesn’t care about your interests, you might prefer the courts.

So asking whether you prefer the courts or ADR is like asking whether you prefer food or water, as Michael Moffitt suggested in his outstanding critique of Owen Fiss’s Against Settlement polemic. Three Things to Be Against (“Settlement” Not Included), 78 Fordham L. Rev. 1203 (2009).  See also Carrie Menkel-Meadow, For and Against Settlement: Uses and Abuses of the Mandatory Settlement Conference, 33 UCLA L. Rev. 485 (1985).

(We all know that “ADR” is a terribly misleading concept for many reasons, including the fact that it includes extremely different things. But we will ignore that for our purposes.)

On reflection, virtually no one would want a system in which every case goes to trial or no case goes to trial.  Rather, dispute system designers should recommend a system that provides a number of good dispute resolution procedures and a process to help people make good, early decisions about the procedures they prefer.

From that perspective, a better question would be whether the legal system (including client counseling by lawyers) offers an appropriate range of good procedural options for resolving disputes.

If the courts are deficient in some ways, this might suggest fixing the problems in the courts instead of simply referring cases to ADR.

How Much Do the Haves Come Out Ahead?

The NCSC survey also found that large proportions of the public believe that the court system treats large corporations (71%) and wealthy people (70%) better than others and treats the poor (61%) and African Americans (51%) worse than others.

Inequality in the courts generally is not news (like safely-landing planes).  Marc Galanter’s classic article, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law and Society Rev. 95 (1974), argued that the structure of litigation favors repeat-players (the “haves”) over “one-shotters” (the “have-nots”). There are many other sources of inequality as well.

Some people claim that ADR “equalizes” the power between parties.  Others argue that weaker parties are at a disadvantage in ADR compared with litigation.

How should you evaluate such claims?

One way might be to note the real inequalities in the legal system and figure that ADR is preferable if there generally are less unequal results in ADR than the courts.  This may be a logical basis for evaluation, but it isn’t satisfying if there are systematically unfair biases in ADR and pragmatic ways to reduce them.

Another standard would be whether – in the courts or ADR – there is any inequality based on wealth, demographic factors, or other factors unrelated to the real merits (which may include factors in addition to legal doctrine).  This would be ideal – and unrealistic.  There are multiple intense factors promoting inequality in our society and it is unrealistic to expect that the courts or ADR can completely filter them out.

Unfortunately, I think that some degree of problematic inequality is inevitable in all our institutions.  Thus a more realistic standard would be whether each DR system includes effective mechanisms to reduce problematic inequalities as much as possible.  This standard is hard to apply, e.g., deciding which inequalities are legitimate or problematic and how much inequality is realistically possible to neutralize.  But I think that it is the most useful conceptual standard for evaluating inequality a DR system, including particular components, like the courts.

You can read more of my views on this in my article, Shifting the Focus from the Myth of ‘The Vanishing Trial’ to Complex Conflict Management Systems, or I Learned Almost Everything I Need to Know about Conflict Resolution from Marc Galanter.

Biography


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.



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