AN INTRODUCTION TO

ALTERNATIVE DISPUTE RESOLUTION

Comprehensive Study Notes on Alternative Dispute Resolution (ADR)

I. Understanding Alternative Dispute Resolution (ADR)

• Definition: ADR refers to a wide variety of methods used to resolve conflicts and
disputes outside of traditional litigation.
• Nature of ADR: It is not intended to replace the judicial system but to provide
alternatives that can be more effective, quicker, and cheaper. ADR processes are
not mutually exclusive and can be used together effectively.
• The Three Primary Goals of ADR:
1. To increase the efficiency of the court system by making it less costly and
more responsive.
2. To provide methods of dispute resolution in addition to the regular court
system.
3. To provide public education regarding available alternatives.

II. Negotiation

• Definition: The most common method of dispute resolution involving direct

discussions between parties or their representatives on a voluntary basis.
• Key Principle: A resolution is only reached if all parties agree.
• Advantages:
o Satisfaction: Parties create their own solution.
o Speed & Cost: Can be started and concluded at any time, saving time and
money.
o Privacy: Usually conducted in private on a "without prejudice" basis.
• Limitations: Can be ineffective if parties are not serious, may result in the
escalation of conflict due to a lack of a controlled environment, and can cause
delays if unsuccessful.

III. Mediation

• Definition: A process focused on communication where a mediator acts as a

facilitator to help parties reach a settlement.
• Role of the Mediator: The mediator assists in communication and negotiation
but has no authority to adjudicate or force a compromise.
• Key Principles:
o Voluntariness: Parties are not required to accept any proposed resolution
and can leave at any time.
 o Confidentiality: Discussions take place in confidence so that offers or
concessions cannot be used against a party if the mediation fails.
o Privilege: Parties usually agree not to subpoena the mediator to testify in
later proceedings to build trust.
• Phases of Mediation:
1. Introduction: Explaining the process and roles.
2. Understanding Issues: Clarifying facts, identifying assumptions, and
focusing on needs and interests rather than rigid positions.
3. Reaching Agreement: Brainstorming noncommittal ideas to meet the
interests of both sides.
• Benefits: High success rates (80-85%), tailored results, and preservation of
relationships.

IV. Arbitration

• Definition: A private adjudicatory process where an independent, neutral third

person (the arbitrator) hears the merits of a dispute and renders a final and
binding "award".
• Key Principles:
o Adjudication: Similar to litigation because a third party makes a decision,
but parties choose the arbitrator and the procedure.
o Enforceability: An arbitration award can be enforced in the same manner
as a court judgment.
o Stare Decisis: Generally, the principle of following precedent does not
apply to arbitrations, making outcomes harder to predict compared to
courts.
• Legal Restrictions: Certain issues cannot be arbitrated, including criminal
liability, fraud, duress, conspiracy, and defamation.

V. Hybrid and Specialized Processes

• Med/Arb: A process where an individual is appointed to arbitrate but first

attempts to mediate the dispute. If mediation fails, the arbitrator renders a binding
award.
• Mini-Trial: Not a real trial but a combination of negotiation, mediation, and
adjudication where parties present their best case to a mutually acceptable
adjudicator who provides an advisory opinion on the likely court outcome.
• Summary Jury Trial: An abbreviated proceeding (usually half a day) where
counsel presents to a judge and a jury of six; the jury's verdict serves as a basis
for subsequent settlement negotiations.
• Consensus Building: A multi-party mediation where all stakeholders work
together to reach a broadly supported final product.
• The Ombudsman: A neutral third party who investigates and makes
recommendations to resolve grievances. Public ombudsmen are independent
 officers of the legislature, while corporate ombudsmen are internal neutral
managers.

Oral Recitation Guide: Questions and Comprehensive Answers

1. Question: How does ADR change the "strategic equation" for a lawyer and
their client compared to traditional litigation?

• Answer: ADR does not advocate for the abandonment of strategic decision-
making. Instead, it adds a crucial question to the equation: "How can I do the
best, the quickest, the cheapest?". It requires lawyers and clients to pay as much
attention to the process of resolving the conflict as they do to the content of the
dispute itself. It views the judicial system not as the only option, but as one part
of a continuum where various alternatives can be utilized effectively, sometimes
in combination.

2. Question: Explain the mediator’s authority and how it differs from that of
an arbitrator.

• Answer: A mediator acts strictly as a facilitator whose role is to assist parties in

communicating and negotiating more effectively to reach their own settlement.
The mediator has no authority to adjudicate the issues or force a compromise.
Conversely, an arbitrator is a neutral third person who hears the merits of the case
and renders a final and binding decision called an award. While a mediator
focuses on the process of communication, an arbitrator focuses on the
presentation of evidence and arguments to render a decision based on the merits.

3. Question: What is the "Problem-Centred" principle in mediation, and why is

it considered an advantage?

• Answer: The "Problem-Centred" principle means that mediation focuses on the

interests and underlying concerns of the parties rather than just their legal
rights and remedies. This is advantageous because it allows for "Better Results"
where the resolution is tailored to the specific needs of the parties. By focusing on
what parties actually need rather than what they say they "must have" (positions),
the mediator can help them brainstorm creative, non-legalistic solutions that are
more likely to be honored, leading to a lower incidence of breach.

4. Question: What are the legal limitations on what can be resolved through
arbitration?
 • Answer: According to the sources, no valid arbitration can take place on matters
involving criminal liability, disputes based on fraud, or contracts induced by
duress through fraudulent misrepresentation. Additionally, applications to set
aside contracts for mistakes going to the root of the agreement, as well as issues
of conspiracy and defamation, are generally excluded from arbitration. Outside
of these specific areas, almost any matter can be arbitrated depending on the
creativity and agreement of the parties.

5. Question: Describe the "Med/Arb" process and the specific benefit of "Less
Posturing" associated with it.

• Answer: Med/Arb is a dual process where an individual is appointed to arbitrate

the dispute but first attempts to facilitate a mediated negotiation. If the parties
reach an agreement, the arbitrator renders an award parallel to that agreement;
if not, the arbitrator settles the remaining issues with a binding award. The benefit
of "Less Posturing" arises because parties are aware that if they do not reach a
voluntary agreement, one will be immediately imposed by the arbitrator. This
encourages them to attempt to reach an agreement wholeheartedly and honestly
during the mediation phase.

6. Question: What is a Mini-Trial, and how does it convert a "legal problem into
a business problem"?

• Answer: A mini-trial involves an abbreviated hearing where counsel makes a

summary presentation of their best case to a mutually acceptable adjudicator and,
often, high-level business executives from both sides. It converts the dispute into
a business problem by putting the resolution back into the hands of the
disputants (executives) who are most experienced and have the greatest
knowledge of the situation. These executives are often better able to assess risks
and costs and see creative solutions that are business-oriented rather than strictly
based on legal rights and responsibilities.

7. Question: Contrast the roles of a Public Ombudsman and a Corporate

Ombudsman.

• Answer: A Public Ombudsman is an independent, non-partisan officer of the

legislature who investigates, criticizes, and publicizes decisions or acts made by
government organizations to ensure fairness for the public. They cannot review
judge’s decisions or reverse administrative actions but can make unlimited
recommendations. A Corporate Ombudsman is a neutral manager within a
corporation who provides confidential and informal assistance to managers and
employees to resolve work-related concerns. They act as a go-between, fact-
finder, or counsellor and usually report to a high-ranking official like the CEO.
Analogy for Understanding ADR: Think of the traditional court system as a massive,
heavy-duty cargo ship; it is powerful and necessary for crossing deep oceans (complex
legal precedents), but it is slow to turn and expensive to fuel. Alternative Dispute
Resolution methods are like a fleet of smaller, specialized vessels—speedboats
(negotiation), tugboats (mediation), and private yachts (private court). They can navigate
shallower waters, reach destinations faster, and are often much cheaper to operate,
though they still exist within the same harbor as the large cargo ship.

MOTHERS AND FATHERS OF INVENTION

Comprehensive Study Notes: The Intellectual Foundations of
Alternative Dispute Resolution (ADR)

I. Historical Context and Evolution of ADR

• The Modern Movement: The contemporary ADR movement in law is typically

dated to the 1970s and 1980s.
• Key "Founding" Moments:
o Frank Sander (1976): Delivered a famous paper at the Pound Conference
suggesting the "multi-door courthouse," a concept where cases are
directed to the most appropriate process.
o Fisher and Ury (1981): The publication of Getting to Yes signaled a
paradigm shift in legal negotiations toward interest-based bargaining.
• Defining the Acronym: While "ADR" traditionally stands for "Alternative Dispute
Resolution," many scholars now prefer "Appropriate Dispute Resolution". This
reflects that trial is actually the "alternative" since most cases are resolved outside
of court.

II. The Social Function of Conflict

• Constructive vs. Destructive Conflict: Unlike many who see conflict as purely
negative, social theorists like Georg Simmel, Lewis Coser, and Morton
Deutsch argue that conflict can be a positive social force.
• Benefits of Conflict: It can prevent stagnation, stimulate learning, forge group
identity, and test social norms.
• Taxonomy of Conflict: Social psychological models categorize conflicts based on
the type of dispute (e.g., scarce resources vs. value conflicts) and the perceptions
of the parties (e.g., direct vs. misattributed conflict).

III. Mary Parker Follett: The "Mother" of Integrative Solutions

 • Key Principle—Integration: Follett (writing in the 1920s) proposed
Integration as a process where parties find solutions that meet their desires
without the "split the difference" compromise.
• Famous Examples:
o The Library Window: One person wants it open for air; the other wants
it closed to avoid a draft. The integrated solution is opening a window in an
adjacent room to provide indirect air.
o The Orange: Two people want one orange; one needs the juice for
cooking, the other needs the peel for baking.
• Circular Response: Follett noted that actions and responses are interdependent;
every action we take sets off a reaction in the other, making us equally responsible
for the outcome.
• Disaggregation: She suggested "breaking up the whole" or making problems
smaller to find hidden points of agreement.

IV. Lon Fuller: The "Jurisprude of ADR"

• Eumonics: Fuller’s term for the "science, theory, or study of good order and
workable social arrangements".
• Process Integrity and Morality: Fuller argued that every dispute process
(mediation, arbitration, adjudication) has its own internal logic and essential
morality.
• Polycentric Disputes: Described as a "spider web" of issues where pulling one
thread (deciding one legal issue) unravels the whole web. Adjudication is often
unsuitable for these complex, multi-party interests.
• Limits of Adjudication: Fuller believed adjudication is a public function that
requires rationality and reasons. He felt it was inappropriate for matters of
"reciprocity" like marriage or business partnerships.
• Mediation’s Purpose: For Fuller, mediation is about "reorienting the parties
to each other" and helping them reach a mutual understanding rather than
creating state-made law.

V. Laura Nader: Social and Cultural Contexts

• The Zapotec Study: Nader observed "harmony ideology" in Mexico, where

isolated communities used mediation to maintain internal solidarity.
• The Critique of "Pacification": Nader warns that American ADR can be a form
of "pacification" that prioritizes peace over justice.
• Power Imbalances: She argues that informal settings (like mediation) might
manipulate the disempowered (women, minorities, or the poor) to give up legal
rights in the name of harmony.
• Public Knowledge: Nader criticizes the secrecy of settlement, which prevents
the public from learning about corporate defects or harmful patterns (e.g., the
Chevrolet Corvair safety issues).
VI. Soia Mentschikoff: Arbitration and Commercial Custom

• Institutional Self-Governance: Mentschikoff saw arbitration as a way for

industries (e.g., trade associations) to govern themselves based on "common
usage" and "reasonable practice" rather than rigid legislative law.
• Rationality in Arbitration: She found that arbitrators are often as "rational" and
norm-based as judges but exercise particularized expertise (e.g., assessing the
quality of delivered goods).
• The Role of Lawyers: She noted that AAA arbitration often becomes more
expensive and complex because it is dominated by lawyers and general legal
principles, whereas trade-controlled arbitration is more focused on industry
standards.

VII. Hart and Sacks: Legal Process and "Institutional Settlement"

• The Principle of Institutional Settlement: The idea that a society must

establish "regularized and peaceable methods of decision" and that those
decisions must be accepted as binding.
• Institutional Competence: Different personnel and procedures are appropriate
for different questions.
• The Lawyer as Architect: Hart and Sacks viewed the lawyer as an "architect
of social structure" who uses transaction planning and negotiation to prevent
disputes.
• Fitting the Forum to the Fuss: A phrase (originated by Maurice Rosenberg)
describing the sophisticated process of matching a specific dispute to the most
suitable resolution method.

VIII. Quality of Outcomes and Psychology

• Pareto-Optimality: Attributed to Vilfredo Pareto, this is an outcome where each

party is made as well off as possible without further harming the other.
• Cognitive Barriers: Research by Kenneth Arrow and Lee Ross identified
biases like "reactive devaluation" (devaluing a proposal just because it came
from the adversary) which impede resolution.
• The Evolution of Cooperation: Robert Axelrod’s study of "Tit-for-Tat"
strategies demonstrated that cooperative behavior is often more successful long-
term than competitive behavior.

Oral Recitation Guide: Questions and Comprehensive Answers

1. Question: Discuss Mary Parker Follett’s view on "compromise" and why she
preferred "integration."
 • Answer: Follett believed that compromise was often an inferior outcome
because it required parties to give up a portion of what they desired to reach an
agreement. Instead, she advocated for integration, where the underlying desires
of both parties are met through a creative, new solution. She illustrated this with
the "Library Window" story: instead of compromising on whether a window should
be half-open (which might still cause a draft and provide insufficient air), an
integrated solution of opening a window in another room satisfied both the need
for air and the need to avoid a draft. This principle is the foundation of modern
"win-win" or integrative bargaining.

2. Question: What did Lon Fuller mean by "polycentric" disputes, and why are
they difficult for courts to resolve?

• Answer: Fuller described polycentric disputes using the metaphor of a spider

web. In such a dispute, there are many interlocking interests and parties; pulling
on one "thread" (deciding one legal issue) impacts all other parts of the web in
unpredictable ways. Courts (adjudication) typically handle binary "two-sided"
disputes through reasoned argument. However, polycentric issues—like
environmental resource allocation or mass torts—involve a web of relationships
that a single, externally imposed judicial decision might unravel or fail to address
comprehensively.

3. Question: Explain Laura Nader's critique regarding the "pacification" of

disputes.

• Answer: Nader argues that the push for ADR, particularly in the 1970s and 80s,
was partly an effort to "pacify" political movements (like the civil rights or
consumer movements) by diverting them from public courts to private, informal
settings. She contends that this "harmony ideology" can be coercive, forcing the
disempowered to settle for "peace" at the expense of their legal rights and
"justice". Furthermore, she believes the secrecy of these processes prevents the
public knowledge necessary to hold powerful actors accountable, essentially
"colonizing" the disputants.

4. Question: Describe the "Principle of Institutional Settlement" as defined by

Hart and Sacks.

• Answer: This principle posits that for a society to function smoothly, it must
establish peaceable and regularized methods for making decisions (courts,
legislatures, private contracts). Once a decision is made through these established
processes, it should be accepted as binding until it is formally changed. This
framework emphasizes "institutional competence," suggesting that lawyers
and parties should be sophisticated enough to know which institution is best suited
 to handle a specific problem—a concept often called "fitting the forum to the
fuss".

5. Question: How do "cognitive barriers" like "reactive devaluation" affect the

negotiation process?

• Answer: Cognitive science, as explored by scholars like Kenneth Arrow and Lee
Ross, shows that human reasoning is subject to biased heuristics. Reactive
devaluation occurs when a party devalues or rejects a proposal simply because
it was offered by their opponent. This creates a "barrier" to conflict resolution
because even a "good" offer may be viewed with suspicion. This is why mediators
are so vital; they act as neutral "offerors" of information, which can correct these
distortions and help parties evaluate proposals based on their merits rather than
their source.

6. Question: Contrast the views of Lon Fuller and Soia Mentschikoff on the
mixing of dispute processes.

• Answer: Lon Fuller was an "essentialist" who believed that mediation and
arbitration had distinct moralities and should not be mixed. He felt that if an
arbitrator tried to mediate, it would cause a "confusion of role" and damage the
legitimacy of the outcome. In contrast, Soia Mentschikoff took a more legal
realist and empirical approach. She observed that in many trade associations,
processes were naturally varied and flexible, incorporating elements of ethics
codes, trade custom, and precedent. She was less concerned with "pure" process
and more interested in how institutions like arbitration could provide specialized
expertise and self-governance.

Analogy for Understanding the Founding of ADR: Imagine a hospital (the legal
system). For a long time, the only treatment available was major surgery
(trial/adjudication). While effective for life-or-death crises, surgery is expensive, slow,
and leaves scars. The "Mothers and Fathers of ADR" were the specialists who introduced
physical therapy (negotiation), counseling (mediation), and specialized clinics
(arbitration). They argued that while surgery is necessary, many patients recover better
and faster if you "fit the treatment to the ailment" (fitting the forum to the fuss), ensuring
the hospital is an efficient system of "Appropriate Medical Care" rather than just a
place for operations.

TOWARD ANOTHER VIEW OF LEGAL NEGOTIATION

Comprehensive Study Notes: Toward a Problem-Solving Model of
Legal Negotiation
I. The Traditional Framework: The Adversarial Model

• Definition and Orientation: The adversarial model describes the traditional,

competitive approach to negotiation that dominates legal literature and practice.
Its primary goal is maximizing individual gain.
• Core Assumptions:
o Zero-Sum / Constant-Sum Game: Negotiators assume that the parties
desire the same limited resources; therefore, what one party gains, the
other must lose.
o Limited Resources: It is assumed that the "pie" is fixed and the only task
is to divide it.
o The "Shadow of the Law": In dispute resolution, negotiators assume
they are limited to bargaining for the same items a court would award,
typically money or injunctions.
• The Structure of Adversarial Negotiation:
o Linear Process: It is a stylized ritual of high first offers followed by planned
concessions.
o Key Points:
▪ Target Point: What a party hopes to achieve.
▪ Resistance/Reservation Point: The "bottom line" beyond which
a party would rather go to court.
▪ Bargaining Range: The zone where the parties' target and
resistance points overlap.
o Focal Point: The final outcome is often predicted to be the midpoint
between the initial offers.
• Process and Tactics:
o Information Guarding: Parties jealously guard their real preferences to
avoid giving the opponent leverage.
o Argumentation: The process is often an argumentative debate designed
to persuade the other side they will lose in court.
• Limitations:
o Unproductive Competition: This model can lead to stalemates or "split-
the-difference" compromises that fail to satisfy either party's actual needs.
o Narrow Solutions: By focusing only on money or court-ordered remedies,
parties miss creative, non-monetary solutions.

II. The Alternative Framework: The Problem-Solving Model

• Definition and Orientation: This model focuses on satisfying the underlying

needs of all parties involved rather than maximizing individual victory.
• Core Principles:
o Needs-Based Analysis: Negotiators must identify the parties' actual
objectives, which are often masked by legal "proxies" like damage claims.
 o Resource Expansion: Rather than just dividing a fixed pie, negotiators
look for ways to expand the resources available before division.
o Integration: Finding solutions that meet the desires of both parties
without requiring unnecessary compromise.
• The Five Categories of Needs to Explore:
1. Economic: Current and future monetary requirements, tax consequences, and
transaction costs.
2. Legal: Admissions of liability, formal documents, and future legal
consequences.
3. Social (Relationships): How the solution affects family, business
associates, and future interactions.
4. Psychological (Feelings): Needs for vindication, retribution, or security,
and the parties' level of risk aversion.
5. Ethical/Moral (Fairness): The desire to act fairly or altruistically.
• Strategies for Creative Solutions:
o Dovetailing Interests: Exploiting differences in how parties value certain
items.
o Logrolling (Trading): Trading items that are of low value to one party
but high value to the other.
o Non-Possessory/Sharing Solutions: Finding ways to share resources
that cannot be easily divided, such as joint custody or neutralized land.

III. Criteria for Evaluating a "Quality" Solution

A successful negotiation result should be measured against these eight criteria:

1. Reflects the client’s total set of real needs and goals.

2. Reflects the other party’s full set of real needs and goals.
3. Promotes the desired relationship between parties.
4. Explores all possible Pareto optimal solutions (making one party better off
without harming the other).
5. Achieved at the lowest possible transaction costs.
6. Is achievable and enforceable without regret.
7. Allows the client to participate in a way they desire.
8. Is "fair" or "just" based on moral or humane adjustments.

Oral Recitation Guide: Comprehensive Questions and Answers

1. Question: Explain the concept of the "Shadow of the Law" and how it limits
adversarial negotiation results.
 • Answer: The "Shadow of the Law" refers to the fact that most legal negotiations
are conducted in anticipation of what a court would do if the case went to trial.
This limits negotiators because they often assume they can only bargain for the
identical, limited items a court is authorized to award, such as money damages
or injunctions. Consequently, they may fail to even conceive of creative solutions—
like apologies, barter, or specific business arrangements—that a court lacks the
authority to order but which could better satisfy the parties' needs.

2. Question: How does the Problem-Solving Model distinguish between a

"compromise" and an "integrated solution"?

• Answer: In the conventional adversarial sense, a compromise requires both

parties to "give something up" or split the difference along a linear scale of value
to reach an agreement. In contrast, an integrated solution (or "problem-
solving" result) is one where the parties find a creative way to meet their
underlying needs without unnecessary sacrifice. For example, in a dispute over a
car sale, a compromise might be a cash settlement that leaves the buyer with too
little money for a new car and the seller with no profit. An integrated solution
might involve the seller repairing the car or providing a replacement at a low
internal cost, allowing the buyer to have transportation and the seller to maintain
a profitable, ongoing contract.

3. Question: What is the "Homans Principle," and how is it used to find

solutions in a negotiation?

• Answer: The Homans Principle is the psychological observation that different

individuals value the same things in different ways. Problem-solving
negotiators exploit these "complementary needs" or value differences to create a
wider variety of solutions. By identifying items that are highly valued by one party
but have a low cost or importance to the other, the parties can "trade" or "logroll"
these items. This allows both parties to increase their total utility—or "joint gain"—
rather than fighting over a single item they both value equally.

4. Question: Discuss the role of "Information Sharing" in the Problem-Solving

Model compared to the Adversarial Model.

• Answer: In the adversarial model, information about real preferences is

jealously guarded to prevent an opponent from gaining unfair leverage.
However, the problem-solving model recognizes that a negotiator is more likely to
develop solutions that meet needs by revealing their own objectives while
attempting to learn the other party's. Instead of making arguments to persuade
the other side, the process consists of asking questions to clarify information.
Research suggests that "joint profit" is associated with information
 processing—the ability to understand how information relates to the problem—
rather than just uninhibited disclosure.

5. Question: What are "Pareto Optimal" solutions, and why are they significant
in Menkel-Meadow’s framework?

• Answer: A Pareto optimal solution is one in which the parties have explored all
possibilities such that one party cannot be made better off without harming
the other. In Menkel-Meadow’s framework, this is a primary criterion for
evaluating the quality of a negotiation. It forces negotiators to move beyond
obvious results and look for ways to increase the size of the "pie". By reaching
the "efficient frontier," the parties ensure that they have not left any potential
value on the table and have maximized the satisfaction of their collective needs.

6. Question: Define "BATNA" and explain its importance when negotiating in

an environment of unequal power.

• Answer: BATNA stands for the Best Alternative to a Negotiated

Agreement. It is the specific, real-world course of action a party will take if the
negotiation fails. For a less powerful negotiator, a clear BATNA is essential because
it allows them to set limits on when they are being taken advantage of. By
realistically appraising the costs and benefits of a non-negotiated resolution (such
as going to court), a party can decide whether a proposed settlement is actually
better than their alternative. A strong BATNA can also empower a negotiator to
walk away from an ineffective or overly competitive session.

7. Question: What is "Principled Negotiation," and how does it change the way
proposals are evaluated?

• Answer: Principled negotiation involves making reasoned, justified

statements about why a particular proposal is important, rather than simply
making unprincipled concessions to reach a compromise. In this process, proposals
are evaluated based on objective criteria or their relationship to the parties'
underlying interests. This shifts the focus from "winning an argument" to "solving
the problem". It also encourages the parties to share information about their
preferences, as they must explain the rationale behind their suggestions.

Analogy for Understanding Negotiation Models: Think of the Adversarial Model

as a tug-of-war over a single piece of rope; the only way to gain ground is to pull it
away from the other person, often leaving both parties exhausted and the rope under
immense strain. The Problem-Solving Model is more like a potluck dinner; rather
than fighting over a single dish, everyone shares what they have and identifies what they
need, often resulting in a feast where the variety of items ensures everyone leaves
satisfied without anyone having to go hungry.

AGAINST SETTLEMENT

Comprehensive Study Notes: Owen M. Fiss and the Critique of

Settlement

I. The Rise of the Settlement Movement

• The Context of ADR: In the early 1980s, a movement emerged to move legal
education and practice away from "legal combat" toward "gentler arts" like
reconciliation and accommodation. This movement, now known as Alternative
Dispute Resolution (ADR), was championed by figures such as Derek Bok and
Chief Justice Burger.
• Institutionalization: The preference for settlement was codified through
changes in legal rules, such as Rule 16 of the Federal Rules of Civil
Procedure, which made the facilitation of settlement an explicit goal of pre-trial
conferences.
• Rule 68 Incentives: Proposed amendments to Rule 68 sought to sharpen the
pressure to settle by requiring a party who rejects a settlement offer—and later
receives a less favorable judgment—to pay the attorney’s fees of the opposing
party. Fiss critiques this as a major departure from the traditional "American rule"
where each party pays their own fees.

II. Core Critique: Settlement as "Plea Bargaining"

• Settlement vs. Adjudication: Advocates of ADR view adjudication as a last

resort for neighbors who cannot agree; they see settlement as a "truce" or a "true
reconciliation".
• The Fiss Perspective: Fiss argues that settlement is not a generic preference to
be institutionalized. Instead, he characterizes settlement as the civil analogue of
plea bargaining.
• Key Principles of the Critique:
o Coercion: Consent in settlement is often coerced by the conditions of mass
society.
o Lack of Authority: Bargains may be struck by those without proper
authority.
o Absence of Justice: Dockets are trimmed, but justice is often not done.
o Capitulation: Settlement is viewed as a "capitulation" rather than a
triumph of peace.
III. The Imbalance of Power

• The Myth of Equality: ADR assumes a "rough equality" between parties, like two
neighbors quarreling. In reality, lawsuits often involve massive disparities, such as
a racial minority vs. a police department or a worker vs. a large corporation.
• Distributional Inequalities:
o Information Gathering: Poorer parties lack the resources to amass the
information needed to accurately predict trial outcomes.
o The "Need" to Settle: Indigent plaintiffs often settle for less than the true
value of their claim because they need immediate funds for survival.
o Manipulation: Richer defendants can manipulate procedural mechanisms
(like discovery) to drive up the costs for the poorer party.
• The Victimization of the Poor: Even if they settle to avoid costs, the indigent
plaintiff is a victim of the high cost of litigation because the defendant will decrease
their offer by the amount of the anticipated costs.

IV. The Problem of Authoritative Consent

• Organizational Conflict: In cases involving corporations or unions, the person

negotiating the settlement may have interests that conflict with the members they
represent (e.g., a CEO settling to hide managerial failure).
• Nebulous Social Entities: In "structural reform" cases involving groups like
racial minorities, inmates, or the mentally ill, there is no formal organizational
structure to generate authoritative consent.
• The "Representative" Problem: Rules like Rule 23 (class actions) allow
"representatives" to speak for groups, but Fiss argues these individuals often
appoint themselves or are appointed by adversaries, making their "consent"
questionable.

V. The Institutional Role of the Court: Justice vs. Peace

• The Remedial Dimension: Adjudication is often not the end but the beginning
of a process. In domestic relations or structural reform cases, courts must provide
continuing involvement to oversee changes in large bureaucracies.
• The Failure of Settlement in Complex Cases: Settlement avoids the "findings
of fact and conclusions of law" that a judge needs to modify or enforce a decree
later. Without these findings, a judge has no basis to determine if conditions have
changed enough to warrant a modification.
• Public Values: Fiss asserts that the purpose of adjudication is not just to resolve
private disputes but to explicate and give force to public values embodied in
the Constitution and statutes.
• The Definition of Justice: Settlement is about "peace," but Fiss argues that
peace is not justice. Settling for "peaceful coexistence" may leave underlying
injustices (like racial inequality) undone.
Oral Recitation Guide: Questions and Comprehensive Answers

1. Question: Why does Owen Fiss compare civil settlement to "plea bargaining"
in the criminal justice system?

• Answer: Fiss compares settlement to plea bargaining because he views both

as "capitulations" to the pressures of a congested system rather than as a search
for justice. He argues that in settlement, consent is often coerced by economic
necessity or the fear of high litigation costs. Furthermore, he believes that like plea
bargaining, settlement allows the parties to bypass the rigorous public scrutiny of
a trial, meaning that while the court's docket is cleared, the public's interest in
justice and the enforcement of social norms is sacrificed.

2. Question: How do "distributional inequalities" affect the fairness of a

settlement, according to the sources?

• Answer: Distributional inequalities (disparities in wealth) infect the bargaining

process in several ways. First, the poorer party cannot afford to gather the
evidence and information required to predict the trial's outcome, putting them at
a disadvantage during negotiations. Second, an indigent plaintiff may be induced
to settle for a sum lower than the judgment's true value because they need
money immediately for basic needs. Third, a wealthy defendant can use the high
cost of the legal process itself as a weapon, knowing that the indigent plaintiff
cannot afford to finance a lengthy litigation, effectively forcing a settlement that
favors the wealthier party.

3. Question: Discuss Fiss’s concerns regarding "Authoritative Consent" in

organizational and class-action settlements.

• Answer: Fiss argues that the "dispute-resolution story" assumes parties are
individuals who can speak for themselves, but in reality, many litigants are
organizations or nebulous social groups. He points out that representatives
of these groups (like union leaders or corporate executives) may have personal
interests that conflict with those of the group members. In class actions, the
"representative" is often a self-appointed individual or one chosen by the
adversary, yet their consent binds thousands of others who never actually agreed
to the terms. This creates a "conceptual and normative distance" between
what the representative says and what the group actually needs.

4. Question: What is the difference between the "Private" and "Public" views
of adjudication presented by Fiss?
 • Answer: The "Private" view, held by ADR advocates like Derek Bok, sees the
purpose of lawsuits as resolving private quarrels between individuals to achieve
"peace" and minimize social combat. Fiss advocates for a "Public" view, where
adjudication is an institutional arrangement of the state used to bring reality
into accord with public values (such as equality and due process). In this view,
the judge’s job is not just to secure peace between neighbors but to interpret and
enforce the values found in authoritative texts like the Constitution, a duty that is
not fulfilled when a case is settled privately.

5. Question: Why is settlement particularly problematic in "Structural Reform"

cases?

• Answer: Structural reform cases (e.g., school desegregation or prison reform)

require continuing judicial involvement and oversight of bureaucratic
organizations. Fiss explains that settlement is a poor substitute here because it
avoids the findings of fact and conclusions of law that a trial provides.
Without these formal findings, a judge has no foundation or "basis for assessing"
whether a decree should be modified years later when one party returns to court.
Settlement treats judgment as the end of the process, whereas in structural
reform, judgment is often just the beginning of a long-term remedial process.

6. Question: Discuss the statement: "To settle for something means to accept
less than some ideal."

• Answer: This statement reflects Fiss's belief that settlement prioritizes

avoidance and peace over justice. He notes that while judges may feel a sense
of relief when a case settles because a difficult decision has been avoided, this
relief is not a recognition that a job has been "done" but rather that a case has
merely been "moved along". Fiss argues that for cases involving "injustices that
cry out for correction," the value of avoiding trial diminishes, and the "agony of
judgment" becomes a necessary social duty to ensure that the deepest ideals of
the law are actually realized.

Analogy for Understanding Fiss’s View: Imagine a public highway filled with
potholes (injustices). ADR advocates see a settlement as a private detour that allows
two specific drivers to get around a hole so they can stop arguing and go home. Owen
Fiss argues that while the detour gives those two people "peace," the pothole remains
in the public road. The role of the court (adjudication) is not just to help the drivers
finish their trip, but to publicly acknowledge and repair the road so that the entire
community can travel safely and fairly according to the rules of the state.