ABSTRACT
Others, like myself, have argued that outcomes derived from our adversarial judicial system or the negotiation that occurs in its shadows20 are inadequate for solving many human problems.21 Our le gal system produces binary win-lose results in adjudication. It also produces unreflective compromise-“split the difference” results in negotiated settlements that may not satisfy the underlying needs or interests of the parties.22 Human problems become stylized and simpli fied because they must take a particular legal form for the stating of a claim.23 Furthermore, the “limited remedial imagination” of courts in providing outcomes24 restricts what possible solutions the parties could develop.25 Some of us have argued that alternative forms of dispute resolution, or new conceptualizations of old processes, could lead to outcomes that were efficient in the Pareto-optimal sense26 of making both parties better off without worsening the position of the other. In addition, the processes themselves would be better because they would provide a greater opportunity for party participation and recognition
of party goals.27 Thus, the “quality” school includes both elements of process and substantive justice claims.28 Some of the arguments here have been supported by the jurisprudential and anthropological work of those studying the different structures that human beings have de veloped in response to different disputing functions.29 In the mid-to-late 1970s, shortly after the first claims for a different
form of justice, Chief Justice Warren Burger and other judicial ad ministrators began to comment on the work load of the federal and state courts, and to lament the litigation explosion.30 They began to advocate the use of alternative methods of dispute resolution-media tion, arbitration, and others-for the purpose of reducing caseloads and processing cases more quickly. Similarly, in the early 1980s an active group of major corporate
counsel began to focus on the high costs of litigation and participated in the founding of an organization devoted to supporting a variety of ADR devices. The goal of this organization, the Center for Public Re sources (CPR),31 is to reduce the legal costs of disputes for the na tion’s major businesses.32
