Institutionalization Alternative Dispute Resolution

The use of alternative dispute resolution (ADR) has become more common over the last 25 years. Used in only a few settings (labor-management negotiations, for instance) in the 1950s, it has now spread to almost every U.S. institution, from the family and church to the schools, the workplace, government agencies, and the courts. Family and divorce mediation are now common throughout the United States, and a number of state and local jurisdictions require that mediation be attempted in divorce or child custody cases before they are brought before the court. Many schools nationwide are using peer mediation to help teach students conflict resolution skills, enabling them to handle their own conflicts without the intervention of teachers or principals. Although such school-based programs were relatively rare ten years ago, they are now commonplace at all levels, from kindergarten through high school. The most successful programs involve the teachers and school administrators as well as the students. Everyone is trained in dispute resolution practices, and they use these practices to resolve the many kinds of conflicts that arise within school settings.

Dispute resolution programs are also much more common in workplace settings than they were 20 or 30 years ago. Ombudsman offices are common, as are streamlined grievance procedures that are based on the ADR concepts of mediation, arbitration, and dispute systems design. In addition to being used to resolve employee-employer and coworker conflicts, ADR is frequently used to resolve consumer and commercial dispute between businesses. Many contracts contain mediation or arbitration clauses, requiring the use of one of these processes to resolve disputes before turning to the courts. This has caused ethical problems, because some industries require consumers to submit to a board of arbitrators created by the industry itself. Whether such mediators or arbitrators can still act fairly is a matter that is under scrutiny. Businesses tend to favor these processes, however, because they are much faster than court-based alternatives, and they are usually private. That prevents the publication of sensitive information, be it trade secrets or the faulty nature of a company's product. (The avoidance of class-action claims in cases in which they are justified is one drawback of ADR processes.)

Finally, ADR has become increasingly commonplace in government agencies, from the local to the federal level, especially in the executive and judicial branches. By July 1995, 18 states had established state offices of dispute resolution to implement and oversee a wide variety of state-based ADR programs. These offices were established largely because of government administrators' concerns about the rising cost of litigation. ADR is also seen as a way of showing "an increasingly skeptical public that [government] can be innovative and consumer-responsive" (Khor 1995b, 1).
Also common at the state or local level are court-based ADR programs designed to lighten burgeoning caseloads. One common approach is called court-annexed arbitration. This is a mandatory but nonbinding form of arbitration that is required by statute or court rule in about 20 states and several federal district courts for particular kinds of cases—money claims under certain amounts (typically $50,000 to $150,000) or automobile damage claims. Disputants are required to try arbitration before proceeding to trial. However, if they are not satisfied with the arbitrators' findings, they can request a new trial (trial de novo). Other alternatives to court-based adjudication that can be suggested by lawyers or judges include early neutral evaluations, summary jury trials, and special master mediators.

Although some federal agencies began experimenting with regulatory negotiation and other forms of ADR in the late 1970s, ADR became widely used at the federal level in the 1990s following the passage of several key acts, including the Civil Justice Reform Act of 1990, the Negotiated Rule-making Act of 1990, and the Administrative Dispute Resolution Act of 1990. The Civil Justice Reform Act required, among other things, that federal judges establish advisory committees to help the courts deal with the problems of court congestion and delay and to consider the possible use of ADR to mitigate these problems. Similarly, the other two acts encouraged, and in some instances required, federal agencies to use ADR processes in rulemaking, enforcement, and other activities affecting or involving the public. Although some federal agencies use ADR much more than others, the trend toward its increasing use continues across all governmental levels.