Improving access to justice through presumptive ADR

Issue May 2007

Fifteen years ago, I had the opportunity to write a series of articles about the promise of Alternative Dispute Resolution (ADR) in Massachusetts. At that time, Massachusetts was behind the national curve in implementing ADR in
our courts. In response, the bench, the bar and a number of community-based associations worked to develop a more systemic approach to ADR.

Since then, ADR has grown in considerable popularity across the commonwealth. Clients routinely state that they do not
wish to “go to court,” and, instead, seek to mediate their conflicts. Clients insist that they do not wish to be involved in  rotracted litigation. Clients are concerned, reasonably, about the cost of litigation.

Massachusetts has responded to such public concerns, but not to the degree necessary to fully address the reality of modern day conflict resolution. Although our courts have continued programs started over a decade ago, we are far from leading the national field. We must respond to the public’s need for a meaningful way to enhance traditional litigation. We must move toward a system of presumptive ADR.

ADR does not supplant traditional court processes. Instead, ADR acts as a meaningful supplement for most civil cases. Although not appropriate for all cases, there are relatively few contexts in which ADR is beyond consideration.

Our courts have taken significant steps in making ADR available in appropriate circumstances. Indeed, Massachusetts courts have listened to their constituency, mindful of significant fiscal and administrative constraints. A number of successful programs make ADR screening, dispute intervention, mediation and conciliation available to the public. Yet, we content ourselves with programs which have not expanded far beyond their original structure and intent. At the same time, the public’s need for ADR has grown disproportionately faster.

In moving toward a model of presumptive ADR, we need not advance the concept of mandatory ADR. Presumptive ADR is not a euphemism for mandatory ADR. Parties should be permitted to opt out of ADR for a variety of reasons. Presumptive ADR, rather, denotes a conceptual shift in how we administer conflict.

The seeds of presumptive ADR appear in the Massachusetts Uniform Rules on Dispute Resolution. For example, Rule 5 of the uniform rules requires us to certify that we have discussed dispute resolution with our clients. Rule 5 is not a hollow requirement. It embodies the heart of presumptive ADR and should be enforced. The procedures to deliver presumptive ADR are in place in courts across the commonwealth: ADR screening sessions in the

Superior Court and Land Court, as well as dispute intervention programs in the Probate & Family Court, serve as natural launches toward presumptive ADR. Moreover, existing time standards may incorporate presumptive ADR while providing that parties may opt out of ADR for good cause shown. What is missing from our system, however, is the perceptual transformation wherein parties seek resolution through ADR as their first resort.

In order to move toward a presumption that parties will resolve their conflict through ADR, we must promote ADR at a level not yet realized in Massachusetts. The bench, bar and our courts’ personnel must be educated on the benefits of ADR. The public must be made aware of ADR’s many applications. In particular, mediation should be promoted as a peaceful, constructive tool in the resolution of disputes. Public funding should be made available for court-annexed ADR.

The advent of presumptive ADR does not portend the demise of our adversarial system or the dilution of our constitutional rights to due process of law. Access to justice does not exclude ADR. Access to justice, rather, is improved as cases which settle make room for those which do not. Likewise, presumptive ADR will not privatize our courts. It has not done so in other jurisdictions. It will not do so in Massachusetts.

Those who rely upon our courts for the resolution of their disputes are justly entitled to a meaningful and comprehensive manner in which to do so. Nonetheless, we sometimes become so enwrapped in our own traditions that we lose sight of what the public requires and, indeed, requests, in order to navigate our increasingly complex system of justice. As we improve the public’s access to justice, let us listen to the needs of the courts’ constituency and respond accordingly.