The Unbearable Lightness of Alternative Dispute Resolution: Critical Thoughts on Fairness and Formality

Years ago, I published Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution in Wisconsin Law Review. Arriving in the early years of the deformalization movement, Fairness and Formality sounded a warning about the risks this conflict resolution approach poses for disempowered disputants. Coming on the heels of an article in the same vein by Owen Fiss, Fairness & Formality attracted attention in part because its message ran counter to the prevailing ideology, according to which alternative dispute resolution is superior in many respects to the in-court variety—cheaper, faster, and friendlier, particularly for the uninitiated. Soon, however, large controlled studies showed that minorities, women, and the poor achieved better results when they took their cases to court rather than to a mediator, arbitrator, or other informal intermediary, even allowing for the higher costs of a formal proceeding.

These considerations did little to slow the rush to ADR, especially mandatory arbitration, which spread rapidly via small-print clauses inserted in contracts setting up a host of relationships, including college loans, medical services, and information technology. I show how this happened, how it disadvantaged ordinary people, and why a new generation of scholarship needs to examine the risks associated with disputing mechanisms that limit one’s access to court.