Dispute Processing beyond the Courts: New Complexity, Old Problems

Abstract

Nearly four decades after Frank E.A. Sander addressed the Pound Conference, his conception of the role alternative dispute resolution (ADR) can and should play in the American legal system remains profoundly influential. Sander’s remarks focused on alleviating overburdened courts and questioning the fundamental assumption that judges hold a monopoly on resolving disputes. He developed a matrix that crossed dispute characteristics—the nature of a dispute, the relationship between disputants, the amount in dispute, litigation costs, and need for speedy resolution—with different methods of dispute resolution, ranging from courtroom litigation to less formal alternatives such as mediation and negotiation. Sander envisioned a court of the future that considered carefully the interplay of dispute characteristics in order to match dispute types with methods of dispute resolution. By “fitting the forum to the fuss,” courts could lighten judges’ dockets, better serve disputants, and improve the delivery of justice. This idea, that courts could facilitate dispute resolution without judges, was revolutionary....