Originally from Alternatives to the High Cost of Litigation

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During the innocent ‘80s and ‘90s, when the alternative dispute resolution movement was younger, and I was too, I read some, though surely not all, of the articles opposing the ADR movement for its encouragement of settlements via court-based, community, and private dispute resolution processes (mainly mediation).

The most notable of these was Prof. Owen Fiss’s Against Settlement, 93 Yale L.J. 1073 (1983-1984) (available at https://bit.ly/2OCJupg). It decries the ADR movement’s impact on the public, the justice system, the polity, and sometimes the litigants.

I recall other ADR opposition writers primarily concerned that disadvantaged or disempowered litigants were settling for less in mediation than they might have received at trial. I encountered these writings after a number of years spent mediating legal disputes and, without uncertainty or angst, dismissed them as rooted in philosophy or narratives untethered to reality.