Often Wrong, Never in Doubt: How Anti-Arbitration Expectancy Bias May Limit Access to Justice

While there long have been “alternatives” to the traditional trial for those seeking to resolve disputes, the so-called “litigation explosion” in the 1970s inspired a campaign for reform of the administration of justice that resulted in the modern ADR movement. The movement had many disparate goals, not the least of which was to improve public access to justice. At the historic 1976 National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (Pound Conference), Harvard Law Professor Frank E.A. Sander first posited the concept of a “comprehensive justice center,” more famously referred to as a “multi-door courthouse,” in which a grievant’s dispute would be evaluated then directed to the most appropriate process or sequence of processes. “Room 3” in Professor Sander’s Multi-Door Courthouse/Dispute Resolution Center was listed in the lobby’s directory as Arbitration,7 the alternative process on which this Article will focus.

The question that I pose herein is whether popular (mis)conceptions about arbitration may actually be preventing some of those who are most in need from receiving the legal relief they seek.