Wednesday, June 29, 2005


The Vanishing Trial and Other ADR MysteriesYesterday I attended a conference in Massachusetts on ADR presented by the Massachusetts Administrative Office of the Trial Court, the Standing Committee on Dispute Resolution, and the Massachusetts Office on Dispute Resolution. (Which is where I heard the news I reported earlier confirming MODR’s official new home at UMass Boston.)

David Hoffman, a collaborative lawyer and mediator, and founding partner of the Boston Law Collaborative, delivered a compelling keynote at yesterday's conference. David took as his theme the symbiotic relationship between the courts and ADR, considering it in the context of the legal system operating within the larger framework of democratic government.

David touched upon a number of changes that the courts have undergone and described a phenomenon which the litigation bar refers to as the “vanishing trial”—the significant decrease over the years in the number of cases which have gone to trial.

The “vanishing trial” caused such consternation among the legal community that the American Bar Association’s Section on Litigation established a task force to evaluate it.

The number of civil trials has indeed declined within the forty-year period from 1962 through 2002. (For a thorough analysis of the statistical data, see the ABA’s report (in PDF format) entitled The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts , compiled by Marc Galanter et al.)

Any number of factors have contributed to (or been perceived as contributing to) the measurable decline in trials—everything from the cost of litigation to fear of juries by corporate defendants to ADR. (Not surprisingly, ADR professionals have grown defensive at the suggestion that ADR itself may be to blame for this decline, and have responded by arguing that the decline in trials is simply evidence of successful case management practices by judges.)

(Brief aside: It is true, as David reminded us yesterday, that trial by jury lies at the very heart of democracy. It stands as a safeguard against abuses of power by the state and serves as a vehicle for advancing liberty and justice. Except for voting, it constitutes one of the very few ways in which ordinary citizens may participate in government. An important civic obligation, it is the very embodiment of the rule of law.)

Intelligent minds may disagree as to the ultimate cause of the vanishing trial. And not all causes should be reason for concern. If fewer cases go to trial because courts are managing cases better and offering an array of dispute resolution mechanisms (including ADR) to disputants which encourage early and mutually satisfactory settlement, then that's a good thing for courts and litigants alike. Causes, however, such as mandatory arbitration clauses in consumer and employment contracts or tort reform schemes which limit or deny access to the courts should justifiably raise red flags for anyone who cares about the availability of justice in our legal system.

Three goals, however, should unite us all, trial attorneys, ADR professionals, and judges alike:

1. The satisfactory and timely resolution of disputes.
2. Dispute resolution mechanisms, alternative or traditional, which inspire public confidence and trust.
3. Efficient and innovative ways to deliver justice.

On occasion, attorneys, ADR professionals and jurists unwittingly work against each other. I have mentioned here before the ambivalence with which some attorneys view ADR. At the same time, as David cautioned in his speech at yesterday’s conference, all too often do mediators, in dealing with disputants unable to reach agreement, invoke trial as a danger to be shunned—rather than as an avenue to be thoughtfully considered as part of the process of reflective decision-making.

There is no reason all of us—attorneys, judges, mediators—cannot work together to achieve the three goals outlined above. Indeed, here in Massachusetts and elsewhere around the world, many strive to ensure that these goals are fully realized.

ADR practitioners in court-based programs depend upon the full support of judges and court personnel; the judicial system in the same measure depends upon broad support as well. ADR practitioners should offer it whole-heartedly, to judges and attorneys alike. That way, in the best spirit of ADR, everyone wins.