Regulation of Dispute Resolution in the United States of America : From the Formal to the Informal to the ‘Semi-formal’

Abstract

The story of ADR in the US is one of ‘co-optation’ of what was to be a serious challenge to formalistic and legalistic approaches to legal and social problem solving and is now highly institutionalized by its more formal use in courts. At the same time, use of private forms of dispute resolution in mediation, arbitration and newly hybridised forms of dispute resolution among disputants who can choose (and afford) to leave the formal justice system (in both large commercial matters and private family matters) has resulted in claims of increased privatization of justice, with consequences for access to justice in different areas of legal dispute resolution. These consequences include difficulty of access to some forms of private dispute resolution for those who cannot afford them and claims that, with mass exits from the formal system by those who can afford to ‘litigate’ elsewhere, there is less interest in judicial service and reform. In addition, in recent years consumers and employees have been subjected to contractual commitments to mandatory arbitration, sustained by the US Supreme Court, which has all but eliminated choice about where to resolve certain kinds of disputes. All of these claims are highly contested by practitioners, judges and scholars of the American legal system.

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