Originally from Alternatives to the High Cost of Litigation

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In the early days of the dispute resolution movement—the ‘80s and ‘90s—the concern was often expressed that we were developing a system of “second-class justice” for those who couldn’t afford the courts. The wealthy, of course, would continue to have access to the “first-class justice” that the public courts provided.

That prediction was a bit off. A shift did occur but it wasn’t what many anticipated.

People chose alternative processes— variations on mediation and third-party decision-making—and the dispute resolution field grew. But the well-heeled and large corporate interests, seeing distinct advantages, seized and invested heavily in it. Courts were no longer the venue for the justice they were seeking.

While corporations were willing, even eager, to use mediation, arbitration and private judging as processes for managing differences, voluntarily, between them, they moved to restrict the choice of dispute resolution within their businesses—that is, with customers, clients, and employees—to mandatory arbitration, and, its corollary, prohibition of access to courts for class-action lawsuits.