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Abstract

The field of alternative dispute resolution (ADR) experienced its “Big Bang” moment in 1906 when Roscoe Pound, then University of Nebraska College of Law Dean, delivered his famous address, “The Causes of Popular Dissatisfaction with the Administration of Justice.” On the seventieth anniversary of the address, Chief Justice Warren E. Burger convened a conference, now known as the “Pound Conference,” to revisit those ideas in the 1906 address and discuss ways to promote greater satisfaction with the judiciary and conflict resolution.Harvard Law Professor Frank Sander delivered the keynote address, outlining the possibility of a “multi-door courthouse” in which litigants could be triaged into the most appropriate forum for their individual dispute, such as mediation, arbitration, or litigation.

ADR expanded rapidly over the next forty years, both as a practice and an academic discipline. Supporters for the ADR movement included Congress, legislatures, law schools, and community dispute resolution centers, among others.Mediation programs, in particular, flourished, and courts have also experimented with arbitration programs since the Pound Conference.

ADR scholars have long touted the many advantages of non-litigation options for disputants. Those advantages include cost and time efficiencies, creative problem-solving, confidentiality, party autonomy and control over the process and outcome, and flexible and accessible processes.Scholars also emphasize the necessity of “buy in” by participants, courts, and providers, so that the benefits of ADR can be fully realized.Questions have always lingered, however, regarding the public’s understanding of ADR, thus implicating assumptions that parties know enough about these processes to participate knowingly.

This Article confirms what many in the field have long feared: ADR processes, such as mediation and arbitration, are still not well understood by the general public. Despite the many programs and advances, the lay public generally self-reports very low familiarity with, knowledge of, and experience with ADR processes. However, this Article goes beyond confirming low self-reported knowledge by the public by comparing community perceptions (from those community members who were at least minimally familiar with the necessary mechanisms) to expert perceptions of various ADR mechanisms and the key features of those mechanisms. We found that although community members and experts have similar perceptions for some mechanisms, there are mechanisms for which their perceptions differ significantly. This distinction suggests that even community members who report being familiar with a mechanism may misunderstand important aspects of that mechanism.

These findings implicate core ethical and practical considerations for lawyers, ADR neutrals, and court systems. As discussed below,lawyers and ADR practitioners rely on informed consent of their clients who are participating in these processes. If the general public is still unfamiliar with these processes forty years after their existence, the implication is that lawyers, neutrals, and courts may not be fulfilling their educational duty to ensure the requirement of informed consent. This Article not only examines these ethical issues but also considers ways to change practice to meet these ethical requirements and conform to best practices.

This Article proceeds in five main parts. Part II examines the research to date in both legal and social science publications regarding the general public’s knowledge of ADR processes.Part III provides an overview of the study and how it relates to the literature.Part IV sets forth the study’s methodology,and Part V provides the applicable results of the study.Part VI considers the far-reaching implications of the study, including how such implications affect lawyers’ ethical obligations related to client counseling and how third parties conduct their practices.

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