Title

ADR and Access to Justice: Current Perspectives

Document Type

Article

Publication Date

2018

ISSN

1046-4344

Publisher

The Ohio State University

Language

en-US

Abstract

Access to justice is a broad topic, and we cannot cover everything. You will notice a few major omissions. Most notably, we are not going to emphasize consumer pre-dispute arbitration agreements. This is not because they are not important, but because much has been written and said on this topic, and it could easily swallow the whole discussion. Also, we are probably not going to say very much about restorative justice, and I am sure you will notice some other holes. We invite you to raise missing issues in your comments.

Let me start with a few opening remarks. We are building upon earlier panels on access to justice at this meeting. At the ones I attended, I have heard two different themes. One is about the availability of lawyers and the value of legal representation, emphasizing that having a lawyer is a key aspect of access to justice. Another theme asks whether the legal system is providing justice aside from the question of adequate representation in individual cases. This critique emphasizes the extent to which the litigation system is stacked, and ways in which laws fail to recognize the individual realities of the disadvantaged. Both these themes are highly relevant to the role of dispute resolution in access to justice.

Those of you who were at the plenary program this morning on Access to Justice heard a question from the audience specifically about ADR, with reference to the role of mediation. In response, Martha Minow opined that mediation is part of the solution, but also troubling. She labeled mediation asa "frenemy"2 of access to justice. So, we will try to build on some of these themes.

Our field has a long history of debate on the relationship between dispute resolution and access to justice. There is a rich literature that critiques mediation as impeding the access of disadvantaged groups to justice and often this literature emphasizes the importance of enforcing legal rights. There is also a counterpoint in the literature that values voice and autonomy in the disputing process. It places an emphasis on procedural justice and remedies beyond those that are available in court. Our discussion is set in the context of this debate.

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