The Goetz example [of poor Bernhard having to mediate with his mugger] was used well to argue that law and courts have important social value, in many kinds of cases, that go way beyond dispute resolution, or even trendy alternative dispute resolution, in a classic article by Albert W. Alschuler, Mediation with a Mugger: The Shortage of Adjudicative Services and the Need for a Two Tier Trial System in Civil Cases, 99 HARV. L. REV. 1808 (1986). I could not find it free online, so you may have to read this one in your library (or the subway).
Thanks to Diane Levin for sending the article along and to some kind soul at EBSCO who sent a link. This is a 1986 article — hence the dated reference to Goetz. It is difficult to disagree with the following formulation of the “adjudication problem” that mediation is partially meant to address.
Adequate adjudicative services are central to the maintenance of a civilized society. This lesson is not confined to criminal proceedings. The vindication of private rights, no less than punishment for wrongs against society, is an essential part of the sensed social compact. By assuring individuals that claims of injustice will be heard, considered, and judged on their merits, the judicial branch of government performs a distinctive service. More than other governmental agencies, courts reinforce a sense of individual worth and individual entitlement. The promise that every person’s claims of injustice will be taken seriously tends to lessen alienation and to foster an awareness of community obligation. When it is alleged that one member of a community has wronged another, someone must be available to hear both sides and to provide an impartial, authoritative resolution of the dispute.
Adjudication is not a service that America provides very well. My earlier writings have focused on criminal cases, exploring the relationship between the complexity of America’s trial procedures and its lopsided dependency on the guilty plea. Adjudication has become less accessible in civil cases as well. In response to growing caseloads and perceptions of administrative crisis, judges, lawyers, and legal scholars have embraced a host of nonadjudicative shortcuts. They have invented innumerable rationalizations for not doing the job and innumerable ways to avoid it.
Having spent twenty-five years in the “adjudicative” system and four in the business of settling cases, I can only say — we need to do better at both. As my trial professor taught me long ago in trial practice — the adjudicative system is no more about “justice” than the settlement system is — the adjudicative system delivers resolution without violence as does mediation, settlement conferences, arbitration and the like.
Ask any party who has lost a civil or criminal suit whether he or she received “justice” and I’ll wager that 9 times out of 10, s/he will say “no.” Anyone who has won will also likely say “no” at least half of the time.
All human endeavors and all human organizations succeed only as they balance individual needs and desires more or less successfully with the welfare of the group. Pitting one form of resolution over another is not, I think, the most productive use of our education, skill and inventiveness. We’re nowhere near ready to abandon the adversarial system. Nor is mediation sufficiently mature as a practice or theory to take on all disputes.
We’re all doing our best by doing our part. Let’s keep improving the small corner of society’s garden we’ve each chosen to tend.
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