Originally from Dispute Resolution Journal

Preview Page

The following is a speech the judge delivered at a conference entitled “ADR for Business Solutions,” held by the American Arbitration Association in Philadelphia late last year.

I intend to speak a little about the mediation program, at the 3rd Circuit Court of Appeals, but I would like to bracket it with some remarks—initially, perhaps a bit of a personal perspective on our adversarial system and the way that alternative dispute resolution can and should play a role. Then, lastly, I will share with you a few philosophical offerings on a lighter side to help nurture your ADR spirit.

It’s interesting that the subject of this conference is aimed at rendering me, and my colleagues, somewhat superfluous—but, perhaps that is not a bad thing: court proceedings are risky business. They’re risky for litigants, and they’re not necessarily truth-producing.1 They involve the telling of a story, and an outcome that is perception-based. How often when we tell a story do we recount exactly what happened? If we tell it a few times, it obviously changes. A trial is the jury’s (or judge’s) perception of the witnesses’ perception of events.

The adversarial system is limited, too, in its ability to address and satisfy all of the needs of litigants.2 Through the courts, one can obtain money, put a halt to certain action, force other action, or declare the meaning of a document or statute. Litigation cannot formulate an agreement or propose a solution. And, in some ways, it may well disregard the real needs of people or entities before it.

The adversarial system is a “winner-take-all” process. It can only do so much, and when people stop and realize this, very often a case settles or they do in fact seek alternative means of resolving their disputes. So I think that court avoidance techniques are not necessarily all bad. Providing for court avoidance is in fact an enlightened approach.