Legal Studies Research Paper Series No.

2024-20

Dispute Resolution as Civil Justice: The

Evolution of Process Pluralism

Carrie Menkel-Meadow
cmeadow@[Link]

University of California, Irvine School of Law

The paper can be downloaded free of charge from SSRN at: [Link]
california-irvine-leg/.
 Dispute Resolution as Civil Justice: The Evolution of Process Pluralism
Carrie Menkel-Meadow 1

Abstract: This chapter focuses on the evolution of modern conceptions of process

pluralism, encompassing the many ways civil disputes are handled, managed or
resolved, through a variety of processes, not just adjudication. The modern “A”
(appropriate, alternative, accessible, aspirational) Dispute Resolution movement
began with a call for a “Multi-Door Courthouse” at the Roscoe Pound Conference
on the Popular Causes of Dissatisfaction with Justice in 1976 and since that time
has spurred the development of a variety of dispute processes beyond the classic
form of adjudicatory trial. Parties with civil disputes, both with and without
lawyers, now may use negotiation (whether dyadic or multi-partied), mediation,
arbitration or various forms of hybridized processes (med-arb, arb-med, mini trials,
summary jury trials, Ombuds, fact-finding, conciliation, negotiated rulemaking,
and ODR-online dispute resolution), utilizing assistance from third parties (such as
mediators, arbitrators or consensus building facilitators). The use of such processes
may be voluntary or coerced (adhesion contracts) or mandated (by courts requiring
condition precedents before trial). The chapter reviews these various forms of
process and explores the critiques made of them (e.g. privatizing justice, power
inequities, lack of precedents and transparency), their jurisprudential significance,
and their modern promise to increase access to justice.

Keywords: Process Pluralism; Alternative Dispute Resolution; Mediation; Arbitration; Caseloads;

Privatization of Justice

I. Introduction; “A”DR and Process Pluralism

When most people have a dispute they use a variety of processes to resolve them, before
turning to the legal system, including avoidance, self-help, negotiation, assistance from a helper
or third person, or use of non-legal forms of dispute resolution (e.g. ombuds, internal or
contractual grievance systems in organizations). The number of cases that actually get filed in
civil courts, both federal and state, is a small fraction of all the disputes that could be brought in
courts (Felstiner, Abel, & Sarat 1980) and in recent years the numbers of cases that, even if filed
in court, actually get resolved in court has dwindled to less than 2% of all cases filed (Galanter,
2004; Menkel-Meadow, 2020). This chapter is about all those “other” processes, before, during
or even after court filed litigation: what was previously known as “alternative” dispute
resolution is now just “dispute resolution.” For those who like to keep the “a” that helped
define our field initially, we now talk of “appropriate” “accessible,” “acceptable” or
“aspirational” dispute resolution (Menkel-Meadow, Love, Schneider, Moffitt & Blankley 2025).

1
Distinguished and Chancellor’s Professor of Law (and Political Science), University of California, Irvine, A.B. Chettle
J. Professor of Law, Civil Procedure, Dispute Resolution, Emerita, Georgetown University.

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“A”DR was developed in modern litigious societies like the US with two formative strands: 1) the
quantitative rationale (reducing court caseloads) came from a fear that there were too many
cases being filed in the legal system compromising the quality of decision making (Burger, 1982)
and the time and cost of case processing (Sander 1976); and 2) the qualitative rationale that
court decisions were binary, rigid, past precedent based, and did not allow tailored future
focused solutions to problems that the parties might better handle with more “informal”
processes with greater flexibility, including mediation, negotiation and even hybrid forms of
arbitration. Over time these processes were used and adapted to both public settings (in courts
and governmental decision making) and private relations (contractual commitments to use
various processes either in lieu of or prior to litigation). In earlier writings I have called this the
“process pluralism” adaptation and innovation to the “limited remedial imagination” of courts
(which are restricted to monetary or injunctive relief, focused on adjudication of past wrongs)
(Menkel-Meadow 1984, 2020, 2022).

The use of a variety of processes outside of or parallel to traditional court proceedings has
resulted in a contentious debate (with and without empirical evidence, Menkel-Meadow (2010),
Resnik 2015) about whether this has resulted in the “privatization” of justice and removal of
important matters from the courts as more transparent locuses of legal decision making and
precedent creation.

This chapter reviews the history of the evolution of these processes, how they have been used,
mandated, hybridized and institutionalized in various forms of “dispute system design” (Amsler,
Martinez and Smith, 2020), in ways that both challenge and innovate conventional civil litigation
forms of dispute resolution. In more recent times, even the “a” of alternative (in person) dispute
resolution is now challenged by online dispute resolution (ODR) (Katsh & Rabinovich-Einy 2017;
Susskind, 2019), Artificial Intelligence, including ChatGPT, and other forms of algorithmic
decision making and dispute resolution. In the future, who will need lawyers, judges or courts?
“Civil” justice may become totally “civilian”!

It should be noted that as we try to evaluate what “civil justice” is, there are many potentially
competing values—accessibility, detailed rationales and precedents following, explaining and
creating law, speed and cost, accuracy of decision making, availability of reliable remedies,
expertise vs lay decision makers, disputant control over both process and outcome, need for
lawyers and experts or other “helpers,” compliance and enforcement, and varied client
satisfaction measures (process and/or outcome) (Sandefur 2016; Tyler & Lind 2001; Welsh,
2006; Jennes & Calavita 2018). Process pluralism has evolved because not all people want the
same things from a dispute resolution or “justice” system, (Menkel-Meadow 1995a). Choice (or

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in mediation terms, “self-determination”), whether by menus (horizontal choices) or tiers
(required vertical use of different processes in order) is now an often preferred form of dispute
resolution.

II. But first, Some History

Many date the development of the “A”DR movement to a talk delivered (and later published in
Federal Rules Decisions, Sander 1976) by Harvard Law Professor Frank Sander at the 1976
Roscoe Pound Conference on the Popular Causes of Dissatisfaction with the Administration of
Justice. In that work Sander suggested that more varied dispute processing choices would be
better for an overloaded and overworked judicial system, suggesting that a “screening clerk”
could help parties decide whether to negotiate on their own, seek a third party helper (either a
“neutral” Ombuds or mediator) or have some form of adjudication (out of court arbitration) or
full adjudication, with evidence, legal rules and decision making by a public official-judge. This
concept was later operationalized in legislation at various levels (federal and state) and court
administration to construct the “multi-door courthouse.” The idea was that courts would be full
service dispute resolution institutions, allowing for a variety of different processes. Sander and
many others (Sander & Goldberg 1994), then attempted to consider how, in advance, parties
and disputes might be efficiently “allocated” to the most “appropriate” dispute process for
different case types and different party needs—“fitting the forum to the fuss” (Rosenberg 1964).
Different kinds of cases and different kinds of parties have different characteristics including
such factors as needing privacy or publicity, precedent generation, one-off tailored solutions,
focus on resolving fact or legal disputes from the past or fashioning new relationships or rules of
engagement for the future. For an illustration of such dispute characteristics see below 2:

Private Public
Consensual/voluntary Compelled/mandatory
Nonbinding Binding
Informal Formal
Oral-unwritten process and Written rules, process,
decision and decision
Temporary/contingent/variable “Permanent” decision or
Outcome outcome
Parties Only Other participants,
interested parties

2
From Menkel-Meadow, et. al, Dispute Resolution: Beyond the Adversary Model, (3rd ed. 2019) at 20.

3
 (representatives or third
party neutrals)
Dyadic (two-party) Multiparty
Competitive (distributional) Collaborative,
integrative

Rights based (public norms) Interests based (private

norms; trades)
Commonsense/community norms Expertise — science,
technical process
“Pure” forms (e.g., facilitative “Hybrids” or combined
mediation, adjudication) process (e.g., evaluative
mediation, court-hosted
settlement conferences)

In fact, the conceptualization of different legal and other processes for resolving disputes has a
longer intellectual and practical genealogy. While many think of going to court when they have
a dispute, sociologists (Coser 1956), anthropologists (Gulliver 1979), psychologists and
jurisprudents (like Harvard Law Professor Lon Fuller) have long suggested that there are many
ways to constructively (Deutsch 1973) resolve, manage or handle disputes outside of
courthouses.

Not all conflict is bad; many important advances in civil rights, consumer rights, discrimination
law, labor and management law, and intellectual property issues were developed through social
movements, and legal protests and contestation. Consideration of what constitutes “civil
justice” necessarily must consider whether all conflict should be resolved, or just effectively
“handled” or “managed” and which disputes might optimally be handled in a formal court of
law. Many community, lay, religious and organizational venues can often provide effective ways
of aggregating, systematizing and managing both individual disputes and more group or social
conflicts. Many of the important social and legal issues of the 20th and 21st century (civil rights,
women’s and children’s rights, employment, education and consumer rights) were organized
around both legal and political (and legislative) and social efforts and campaigns. Recent
withdrawal and redefinition of “rights” (e.g. abortion (Dobbs v. Jackson Women’s Health
Organization, 597 U.S. 215 [2022]), and affirmative action in educational admissions (Students
for Fair Admissions v. Harvard and North Carolina, 600 U.S. 181 [2023]) by the United States
Supreme Court raise questions about whether equity and civil justice can best be achieved
through formal legal processes only, and at what levels (state, federal or local). The concept of
“process pluralism” acknowledges that justice, whether civil or criminal, individual or collective,

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may be sought by many different processes—what I have called, formal, informal and semi-
formal processes (Menkel-Meadow 2014).

Perhaps the most important “mother” of ADR is Mary Parker Follett (1995) who, as an
interdisciplinary writer and practitioner of social work, management, labor relations and
education in the 1920’s and earlier, noted that the basic three modes of conflict resolution
included competition (domination), compromise, and integration (the additive way of meeting
the goals and needs of all parties to a conflict, without any party having to give up
(compromise) something that it needed or wanted. These ideas were elaborated in a variety of
settings including labor negotiations, (Walton & McKersie 1965), international, business and
everyday negotiations (Fisher, Ury & Patton 2011) and legal negotiations (Menkel-Meadow,
1984). “Integrative bargaining, negotiation and problem solving,” (Menkel-Meadow 2022) could
provide opportunities for joint mutual gain in settings, instead of the Cold War mind set (of
game theory and its progeny in decision making) or limited remedial imagination of courts and
litigation that created “zero-sum” conceptions of how disputes could be resolved (Menkel-
Meadow 2003). Mary Parker Follett’s work, inspired by several striking examples of conflict
resolution (dividing an orange not in half but separating rind from juice for the different baking
needs of two sisters; opening a window in an adjacent room to maximize airflow without drafts;
the music of friction of bow on string for violin), produced attention to more integrative forms
of problem solving that sought to “expand the pie” before dividing it (if necessary). Negotiation
and mediation and other non-court processes promised non-binary, not winner-take-all and
less brittle possibilities for dispute resolution. Creativity, instead of argumentation and
advocacy, became the desired skill for many of this problem solving school of conflict resolution
(Menkel-Meadow 2001).

Lon Fuller (2001, 1971,1963) as arbitrator, jurisprudent and Harvard Law professor, in a series of
articles, developed the notion of process “integrity” and difference. Adjudication is needed
when we need a precedent (e.g. Brown v. Board of Education, 347 U.S. 483 [1954]) and public
statement of legal rules that govern the rest of society; mediation is more appropriate when the
parties seek to “reorient their relationships to each other” (families, ongoing employment
relations), and arbitration is most appropriate as a more private form of dispute resolution
which requires knowledge of the culture of the contract or “law of the shop” (labor relations,
business transactions of repeat players, etc.). Different kinds of disputes, with different kinds of
parties (iterative relations vs. one-off lawsuits), and different contexts (ongoing relations,
limited resources) might best be handled in different ways.

The formative ideas here were that ex ante conceptions that all disputes should be processed in
the same way ignored the sociological, psychological and legal complexity of different contexts

5
and substantive needs of the parties. Thus, the quantitative (reduction of caseloads) and
qualitative (more tailored future and relationship focused outcomes) merged in the 1970s,
1980s and 1990s to produce more varied legal processes in both private (contracted for) and
public (court annexed mediation, arbitration and settlement conferences) settings.

The 1990s saw the institutionalization of the uses of these different non-adjudicatory forms of
process in the courts (court annexed and sometimes mandated arbitration) and in other
governmental settings. The innovative and hybridized process of “reg-neg” (negotiated rule
making, Harter 1982) brought stakeholders of administrative legal issues together before rule-
making to negotiate rules that were then hoped not to be subject to post rule legal challenge
(still subject to scholarly controversy about effectiveness, see Freeman 1997 and Coglianese
1997). Congress passed legislation and the federal courts amended procedural rules to
authorize settlement conferences (Fed. R. Civ. Pro. Rule 16); promote the use and study of
mediation and arbitration in the court system (the Civil Justice Reform Act of 1990, 28 U.S. C.
Sect. 476); encourage the use of negotiated processes in administrative law in the Negotiated
Rule Making Act of 1990, 5 U.S.C. Sect. 561-570 and the Administrative Dispute Resolution Act
5 U.S.C. sect. 571-584, 1996, and throughout the 1990s, promoted inter-agency cooperation in
using mediation and a variety of alternative processes through the Administrative Conference of
the US (ACUS—defunded in the Bush administration).

The 1980s and 1990s saw the development of a variety of innovative legal processes in the
courts, such as summary jury trials, summary judge trials, med-arb, early neutral evaluation
panels (Brazil, 1990), as well as in private settings, including the corporate mini-trial, a third
party assisted mediation- negotiation procedure with lawyers and parties that could have non-
binding or binding decisions by an expert (CPR 1982).

At the same time the United States Supreme Court began to legitimize the use of mandatory
(called “cram down”) arbitration in variety of contract settings (consumer, employment,
telecommunications, health care, education) beyond what many thought was intended by the
Federal Arbitration Act (“FAA”) (9 U.S.C. Sect. 1 et. seq.) to apply only to consensual business
contracts. This jurisprudence, developed over many decades, now is decried by many who note
that these clauses are not consensual, and that this interpretation is beyond the legislative
intention of the drafters of the FAA (1925). Alas, it is now the state of the law that the FAA pre-
empts almost any effort by states or other legislative or administrative bodies to restrict the use
of arbitration in order to provide more freedom to litigate and choice for disputants (Gilles
2016). Most recently, as a result of the #metoo movement in sexual harassment and assault
cases, the US Congress has restricted and prohibited the use of mandatory arbitration in cases
involving sexual assault and harassment (see Ending Forced Arbitration of Sexual Assault and

6
Sexual Harassment Act (EFASASHA) of 2022), but many legal issues still remain about when
arbitration is prohibited. For at least the last three decades a variety of consumer and
employment lawyers have attempted to pass amendments to the FAA restricting the non-
consensual clauses and allowing litigants to pursue their legal claims, in courts and in class
actions (which have been limited also by the Supreme Court in arbitration cases, see AT&T
Mobility v. Concepcion 563 U.S. 333 (2011); Sternlight 2012). As many have argued, these
mandatory arbitration clauses have “erased” (Resnik 2015) the ability to vindicate many
important claims in courts.

This is one of the leading issues in civil justice at this time. If “A”DR was meant to encourage
party choice and self-determination in process pluralism, current jurisprudence forcing people
to use arbitration (usually in private and with great cost), especially when most people don’t
realize they have “waived” litigation in the contracts they sign, then current law restricting
litigation is NOT civil justice in the process pluralist conception. There is no to little choice and
there is no transparent resolution of substantive claims.

In addition to the “pure” forms of non-adjudicative process- negotiation, mediation and some
forms of arbitration, newer hybrid forms (Menkel-Meadow 2019), combining aspects of these
processes, became common in the 1980s and 1990s in both public (court and administrative
agency) and private (contractually before, during and even “after” disputes develop) sectors.
Med-arb is a process where parties agree (or are ordered by courts) to use a “neutral” (court
appointed or chosen by the parties) mediator to facilitate negotiations to settle a matter, but
often agree that if they come to impasse the third party neutral will be authorized to issue a
binding (or non-binding) decision, which is usually not “published” in any way (preserving the
goals of privacy and party choice in dispute resolution).

Another dispute resolution innovation reverses this process so that in situations where
arbitration is either authorized by contract or ordered by courts (several federal courts have
assignment to mandatory arbitration in cases of certain values, e.g. Eastern District of
Pennsylvania,) the arbitrator may convert to a “facilitator” of settlement during the arbitration,
or even after decision and award, where the parties agree, or the arbitrator invites the parties
to craft their own better award, based on their particular needs.

Judges and magistrate judges who conduct Rule 16 pre-trial settlement conferences (Menkel-
Meadow 1985) often now “mediate” themselves or at least explicitly discuss various ADR
options with the parties. Rule 68, Fed. R. Civil Procedure, provides that parties who turn down
settlement offers and then do worse at trial may be responsible for attorney fees for the
subsequent trial. This kind of rule, common in many loser pays jurisdictions, such as in England

7
and Wales, is intended to be another form of incentive to pursue settlement, rather than trial.
When I practiced law in the federal courts in the 1970s and 1980s one of my favorite magistrate
judges, who presided over settlement conferences, had a needlepoint (done by his wife!)
framed in his office “To sue is human, to settle divine” (Magistrate Naythons, see Menkel-
Meadow 1984, p. 754). Recent empirical work suggests that both plaintiff and defense counsel
often commit errors of judgment and case valuation when they don’t settle and go on to do less
well in full trials (Kiser 2011).

The Federal Rules of Civil Procedure Rule 53 also provide for court appointed “special masters”
to assist in pre-trial planning and discovery monitoring, but have also included special masters
who actually mediate and settle cases (as Kenneth Feinberg did in the Agent Orange cases and
Francis McGovern did in a variety of land, Indian claims and mass torts cases (McGovern 1986,
2009). Kenneth Feinberg managed a unique claims settlement process, following the September
11 attacks in the United States, in which thousands of victims, survivors and families were
compensated out of court through a hybrid arbitration, claims processing procedure (Feinberg
2006). These unusual processes which are hybrid, both in process design, but also because they
hybridize conceptions of public and private justice, remain very controversial (in granting
dispute resolution authority to non-confirmed non-judicial individuals, with little to no
accountability). Though proven to be quite efficient, there are concerns about conflicts of
interest, repeat player bias and lack of transparency in both choice of third party neutral and
decision making within the process.

Many class actions of mass torts (and some consumer, discrimination and securities litigation)
have also been “managed” in processes using ADR techniques—special masters and mediators
meet with the class counsel, many parties (including plaintiff class lawyers, defense counsel and
insurers, e.g. the Wellington Asbestos Dispute Resolution Panel, the Dalkon Shield Claims
Facility, both of which I served on for many years as a mediator and arbitrator, see Menkel-
Meadow 1998) to first: “settle” the case with a large global settlement fund, and then second,
to develop a process for allocating individual claims. These hybrid processes are also efficient
but subject to criticism by scholars and practitioners as potentially compromising due process,
individual, rather than “collective” justice, and transparency (Menkel-Meadow 1995; Hensler
1995).

In another form of unusual “A”DR, a few states (e.g. California) allow judges to sit in private
matters (called “Rent-a-Judge”) to issue rulings that are private, but binding and enforceable,
and by statute (and Constitution in California) are appealable. This form of alternative process
has been very popular for celebrity divorce and intellectual property disputes where both
parties seek a definitive ruling and the full panoply of legal rules and procedures, but want to

8
keep some facts and evidence private (e.g. trade secrets), which works until appeal (which are
public when filed in the courts).

While conventional legal disputes look at two parties on opposite sides of the “v.”, connoting
two party adversarial processes (even if parties on either side are numerous as in large class
actions of plaintiffs or multiple defendants), many modern legal disputes actually involve more
than two parties (insurers, employees, shareholders, family members, organizational members)
and so the conventional legal system might be too “rigid,” “brittle,” or “binary” to adequately
handle multi-party and multi-issue disputes (Menkel-Meadow 1995, 2012, 2022). Thus, a
variety of hybrid forms of combinations of litigation, mediation, case settlement processes,
claims facilities, using arbitral and mediative processes, and the new forms of consensus
building fora (Susskind 1999; Menkel-Meadow 2004-2005 ), involving the participation of many
interested parties may, in fact, produce more “justice” in the Habermasian sense of deliberative
participation by those affected by laws and rulemaking in the processes that produce those laws
and rulings (Habermas 1998).

As another “A”DR innovation, the 1990s saw the development of “problem solving courts” in
particular subject areas (family law, vice-prostitution, drugs) with the conception that the brittle
win/loss system of criminal justice could be reformed with a “restorative justice” (social work,
psychiatric and rehabilitation) model that was intended to reduce incarceration and promote
“healing” at both community and individual levels. As with many of these reforms, the empirical
evidence on recidivism rates and perceptions of fairness and equity (on racial, gender and class
differences) is mixed and continues to be studied and evaluated (Cohen & Gruber, 2019;
Berman, Feinblatt & Glazer 2005).

Newer hybrid forms of dispute resolution make use of computers and machines—algorithmic,
automated, Artificial Intelligence and Large Language Models of dispute resolution, now known
as “ODR” (online dispute resolution) or “digital justice,” a process innovation that began in the
1990s but exploded during the COVID pandemic (see Norton 2023). These new technologies
now raise a host of new issues and controversies about efficiency, accessibility and legitimacy of
dispute resolution processes and the content of both civil, and yes, criminal justice (ODR being
used for small disputes like traffic tickets, as well as in more major disputes—bail hearings,
parole and even full trials in some cases). Digital dispute resolution may increase access and
some sense of participation in the “justice” system but at other costs (transparency, rule
development and creativity of outcome). The current literature attempts to study whether
“getting to YELP” (reputational postings on social media, Menkel-Meadow & Dingwall 2019)
may be more effective as informal class actions in getting some kinds of relief (e.g. by

9
“crowdsourcing both complaints and possible remedies), beyond the cumbersome processes of
formal litigation.

III. Is Civil Justice Formal, Informal or Semi-Formal and Does it Matter?

Conceptions of formal justice in modern American jurisprudence include, in a trial or formal

hearing setting, transparency or publicity of proceedings, reasoned legal arguments based on
legal precedent and “proven” facts, including witness examination and testimony, and discovery
of facts, documents, and information, even from adverse parties and sources, public officials
(whether elected or appointed in both state and federal variations) as judges who advise fact
finders (juries) about the law or engage in fact finding themselves, as well as make legal rulings,
write formal, reasoned opinions that have precedential or stare decisis impact on similar cases
and, most important, are governed by formal rules—Federal (or state) Rules of Civil or
Criminal Procedure—and are subject to appellate and other review procedures.

The third-party neutral judge or “universal third” (as historian Martin Shapiro (1981) describes
the role) is expected to be detached from the parties and the issues and to rule on the basis of
agreed-to substantive and procedural rules. This assumes the foundational principle of consent
to the juridical form and jurisdiction (power to speak) of the tribunal. Many Anglo-American
writers on formal justice also assume a particular kind of process—adversary argument, with
assumptions that truth as well as justice will be produced by hearty and contested, if policed,
production of evidence, and arguments from both (assuming two) sides. The neutrality and
disinterestedness of the decider or arbiter in formal justice is so important to many
jurisprudents of formal process that any departure from the distinctive adjudicative role (such
as to manage or mediate cases) is regarded as sullying the basic process.

These formal rules and processes are appropriate in some, but not all settings. As I and Lon
Fuller and others have argued for decades, the type of case, what is at stake (the “res” of the
dispute), the relationship of the parties and whether adjudication of past wrongs or creation of
new governing rules and customs for ongoing relations are all factors that require individualized
conceptions of what is at stake and what process is most appropriate (Menkel-Meadow 2022).
This can often be quite complex, involving issues of consent, differences of choices among and
between parties, changes of mind and heart in the middle of particular disputes, and the need
for monitoring and enforceability.

More informal forms of dispute resolution, constituting the ADR movement suggested other
values of process might be more important in some situations. Specialized areas of law, like
family law and labor law, had long used informal processes like negotiation and mediation for

10
dispute resolution, but the practices of both family and labor mediation began to be applied
and opened to a greater variety of legal (class actions, torts and contracts claims), political
(resource allocation, environmental disputes, local government disputes), and social disputes
(community policing, racial tensions, ethnic tensions, educational institutions). Lawyers and law
students, as well as other professionals, began to seek training in mediation and the “healing
arts,” as well as continuing study of more conventional litigation skills.

Those who were dissatisfied with the “limited remedial imaginations” of courts’ limited power
to order creative relief or the “adversarial culture “of legal problem solving, and others who
wanted to encourage more direct party participation without the need of professionals (lawyers
and judges) in dispute resolution, combined to form the “informal justice movement.” This
social movement encouraged individuals and communities to seek resolution of social, political,
economic, and even legal problems outside the courts, using community mediation, consensus
building, group organizing, and strategies that allowed more than two parties to seek resolution
of problems by negotiated and consensual, not court-commanded, solutions. Over time, these
informal processes were criticized for “privatizing” justice that many thought should remain in
the public and formal sector for transparency of process, generation of public precedential
rulings, and equalization of unequal power or economic endowments. Others, including me,
continued to maintain that some aspects of informal dispute resolution (absence of some
formal rules, confidentiality, trading of preferences, creation of new party-specific norms, and
tailored solutions to problems) produced better justice for some, if not all, disputants. Thus,
core claims of value for informal justice included:

• Direct party empowerment and participation in case presentation and resolution

• Self-determination
• Consent
• Tailored solutions, based on party needs and interests, not necessarily rights and claims of law
(using tailored individual, religious, ethical, or communitarian principles for resolution, e.g.,
joint custody in divorce and children ’s custody)
• Nonmonetized outcomes and solutions (apologies, trades, in-kind, other forms of relief)
• Future- not just past-, oriented problem solving , without need necessarily of fact finding or
assessment of blame
• Confidentiality , producing the opportunity for changed positions, trades and nonprecedential
accommodations or solutions, as well. as privacy protection for disputants of all kinds—
individuals and organizations
• Inclusion of more than two litigant parties in interest (multiparty dispute resolution)
• Reduction of elite and professional decision makers in parties ’ lives and disputes, utilization of
party “consent,” not command, as legitimating value

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• Flexible, situation-specific rules and practices of proceedings
• Contingent solutions (capable of being revisited with changing conditions) without
precedential force or rigidity
• Reorientation of the parties to each other—promoting healing relationships, not rupture and
continued conflict and resentment of formal litigation or punitive results in criminal matters
• Potentially faster and cheaper dispute resolution (“efficiency”)
• Greater legitimacy of and compliance with party-chosen outcomes (Menkel-Meadow 2014,
p.10-11)

With the expansion and acceptance of ideas of informal consensual problem solving and
dispute resolution in the early 1990s, all branches of the US government responded. Courts at
both federal and state levels began to offer voluntary, and then mandatory, programs of court-
annexed mediation and arbitration processes and later included such processes as early
neutral evaluation—a process in which counsel in a case meet with a volunteer or paid lawyer
to review claims, schedule discovery and information exchange, pursue settlement, and get an
informal evaluation of the merits of the case. A few innovative judges, like Thomas Lambros in
Ohio and Jack Weinstein in New York, began to adapt private settlement techniques for public
cases. Lambros originated the summary jury trial in which lawyers and witnesses presented
shortened versions of their cases, usually in no more than one day, to those in the jury venire
for an “advisory opinion” by the jurors for use in further case settlement negotiations.
This practice was criticized as conflating the public function of the jury, whose members came
to court expecting to find facts in a litigated case and instead were used to assist private
negotiation discussions. Summary jury trials were often used in high-value fact disputes (e.g.,
for asbestos and other mass claims) in order to set baseline lay-fact evaluations of the quality
of formal proof and evidence.

Even the executive branch of the US government strongly encouraged the use of ADR. During
President Clinton ’s administration, Attorney General Janet Reno required mediation training of
herself and her senior staff (I performed this training), authorized an “ADR czar” position in the
Justice Department, allocated funds for the settlement of cases involving the federal
government, and changed policies having to do with federal government participation
in arbitration and mediation programs. In addition, the Interagency ADR Working Group
representing all major federal agencies began to meet regularly to discuss dispute resolution
programs throughout the federal government. Many agencies now provide for “collateral duty”
in which employees in one agency act as mediators or dispute resolution consultants to other
agencies in the government (thus providing some neutrality and lack of conflict of interest in
internal agency matters). An awards program honored such branches of the government as the

12
Army Corps of Engineers and the Navy for instituting nonlitigation dispute resolution processes
in procurement contracts, and later even in dispute resolution issues in war zones. In addition,
many federal agencies now have internal dispute resolution programs, including ombuds to
resolve internal conflicts (employment, policy), as well as to deal with disputes with clients or
customers of particular agencies (e.g., Environmental Protection Agency, Securities and
Exchange Commission, National Institutes of Health, Department of Energy).

These uses of informal dispute processes within the formal government are one form of
semiformal dispute resolution, sometimes authorized by regulation, other times just by agreed-
to practices or recommendations. Practices can change with the change of political
administration. To what extent should formal rules of procedure, requirements of transparency,
publicity, rule of law, appeals from decisions, or mediation or negotiated agreements be applied
to such processes? To what extent are such processes really consensual? And if, instead, they
are mandated, what redress is there to formal courts?

Several new private providers of dispute resolution services emerged in the 1980s. The Judicial
Arbitration and Mediation Service (now known solely by its acronym, JAMS) was founded by a
state court judge in California who retired from the bench to found one of the most successful
purveyors of private dispute resolution services, now serving all major commercial centers in
the United States and beginning to compete with the international tribunals (the International
Chamber of Commerce in Paris, the London Court of International Arbitration, the AAA’s
[American Arbitration Association] Center for International Dispute Resolution) for arbitration
and mediation services. Former judges and private attorneys now earn upwards of five
thousand dollars a day or more for private dispute resolution services.

Local communities have also used informal processes (consensus building, deliberative
democracy, public policy mediation) to resolve land use; environmental, cultural, and ethnic
conflict; budget allocation; and other disputes outside formal processes (Merry & Milner 1993;
Susskind et al. 1999). With a new cadre of professionals specifically trained to engage complex
communities in such disputes and group decision making, complex multiparty disputes may be
resolved with agreements, often contingent, and monitoring programs (such as in resource
management, land use and zoning, waste siting) that straddle public and private decision-
making rules and bodies. The legal issue often then involves whether a public body, such as a
regional zoning land use or federal resource agency, must participate and approve agreements
reached in private settings, outside of formal court, legislative, or administrative hearings. These
processes may themselves be quite formal, adhering to community- developed rules of
engagement, delegation of state, federal, or local authority, but such negotiated agreements
still often require formal governmental approval, and what was accomplished through these

13
creative informal processes may unravel when returned to more formal and adversary
proceedings.

The United States justice system is now characterized by a complex set of federal-state-local
formal, informal and semi-formal institutions and processes for resolving legal, social and
political disputes. Formal court processes may include the informal (e.g. mediation
recommended by a judge), so called informal processes may have quite complex rules and
procedures of their own (e.g., both domestic and international arbitration, often managed by a
formal, but private arbitral institution, such as the American Arbitration Association or the
International Chamber of Commerce in Paris) and hybrids of public and private dispute
resolution processes look semi-formal, partaking of few rules, until someone wants to challenge
the process or outcome in another forum (e.g. zoning, internal organizational grievance
proceedings). As I have indicated in prior work (Menkel-Meadow 2012, 2014), the modern
dispute resolution menu or tier of choices is enough to make any client or lawyer dizzy with
possibilities. The metaphor of dress for a modern social gathering may be apt: should I dress in
formal wear (tuxedos or suits for court?), semi-formal (business casual as they say in the UK) for
mediations, or can I come as I am (informal) (and in pajamas and barefoot in the ZOOM room of
pandemic dispute resolution) for negotiations and consensus building conferences? How can we
know how to dress, how to behave, and conduct ourselves in this world of process pluralism?
How can we evaluate and decide what works when?

IV. How do we Know?: Evaluating Claims about Civil Justice and Forms of Dispute
Resolution

As the ADR “movement” took hold in both private (contractual choices, pre-dispute, during
litigation and then again after) settings and public (court and governmental referrals to
alternative to trial processes), critiques developed by both scholars and practitioners. Was
“A”DR privatizing justice, reducing transparency, layering access and choice by party resources?
Did alternative forms of process deliver on their claims for faster, cheaper, more tailored
solutions, leading to more compliance and satisfaction with outcomes? Was there really more
party participation and deliberative democracy in more party directed processes? Critiques
were written at theoretical, jurisprudential and policy based levels as legal empiricists began to
study these questions. In attempting to assess the claims of how ADR does or does not
contribute to civil justice, several different kinds of studies were conducted:

1. Empirically descriptive work, documenting the various processes and procedures used and
the effects or outcomes of those processes. The processes include arbitration, mediation,

14
consensus building and negotiated rule-making, and bilateral negotiation; outcomes include
results achieved as well as the behaviors exhibited in the course of the processes.

2. Empirically comparative work, purporting to compare, through data analysis, differences in

process, outcome, and other operationalized measures of efficiency or fairness, of different
forms of DR. For example, researchers have asked whether various forms of ADR (e.g.,
mediation or arbitration) are, in fact, cheaper and faster, or offer deeper and richer solutions
than formal litigation or regulation, and how various forms of ADR compare to each other on a
variety of dimensions (e.g., facilitative vs. evaluative, or caucus vs. non-caucus models of
mediation).

Over the years I have reviewed the extant studies in many fora (Menkel-Meadow 2010, 2012,
2014, 2018, 2019, 2020) to consider some of these questions:

• whether there should be voluntary or mandatory assignment to a particular form of dispute

resolution;
• whether the privacy of the parties is more important than or should be measured against the
transparency to others of both processes and outcomes;
• whether vesting of power in privately paid professionals, rather than state officials, for dispute
decisions is desirable;
• whether some forms of dispute resolution are more likely to serve the empowerment of
parties, communities, and other non-elites, rather than those in the more expensive and elite
controlled litigation systems;
• whether the resources invested in alternative systems are justified or improve compliance and
enforcement of outcomes over commanded litigation results; and
• whether institutional design of alternative justice systems at very advanced stages of legal
development can serve as a model in more newly created legal systems and political orders.

There is a serious “baseline” problem in empirical analysis of dispute resolution processes. With
so many issues about how processes deliver fairness and justice being so hotly contested, it is
difficult, if not impossible, to know what is being compared to what. Litigation varies as much in
different venues (e.g., civil law versus common law, or federal versus state courts) as mediation
does in private or court-annexed settings or, as arbitration does in domestic and international
settings. Whenever I read any attempt to “compare” and “contrast” the efficacy or quality of
different processes, I always ask, “compared to what?” Close scrutiny of virtually any
comparison will dampen one's confidence in the conclusions reached. Put simply, truly
experimental methods are virtually impossible in this field; one cannot submit the same actual

15
dispute to two treatments. At best, so-called “like” cases in one “treatment” are compared to
“like (similar) cases” in another “treatment” and therein lies the problem.

In large aggregate studies, such as in the “Vanishing Trial” statistics demonstrating decreasing
uses of full civil trials (Galanter, 2004), we can see general trends in processes used and in
variations in gross outcomes. But when the focus is more on “internal” experiences of fairness
of process and outcomes in particular cases, it is much harder to match totally homologous case
types. Processes with the same name are practiced differently; different private ADR institutions
and providers use different rules, standards, procedures, and definitions. Even in the public
sector, when courts or administrative agencies use various forms of ADR, they do so with
different intentions, different requirements, and different effects such as whether or not
negotiated agreements can serve as public outcomes without formal governmental ratification.

In the mid-1990s the U.S. Congress authorized several major studies of the use of ADR and
other “case management” tools in the federal courts. These studies, the “RAND” studies
(Kakalik et al., 1996) and the Federal Judicial Center (FJC) studies (Stienstra et al. 1997) offered
some different conclusions from studying different courts within the federal system (Menkel-
Meadow, 1997: 1922–30). There were attempts to “match” similar courts, with similar
caseloads (e.g., the eastern district of Pennsylvania (Philadelphia) with the central district of
California (Los Angeles)), but with different case management and ADR practices, in order to
test hypotheses about relative case processing times etc. In general the RAND studies found
that case processing time was not generally reduced by the use of mediation, arbitration, or
such programs as Early Neutral Evaluation, but that it was sometimes positively affected by such
devices as setting early trial dates—a result consistent with earlier studies of mandatory
settlement conferences (Menkel-Meadow 1985; Rosenberg 1964). The FJC studies revealed
some decrease in case processing time and reduction of litigation costs. Both the FJC study and
some of the data in the RAND studies supported claims that parties generally had high
satisfaction rates in their use of “alternative” processes. Other studies suggested that
mandatory arbitration programs were not popular (and were often considered to be a denial of
due process rights to civil juries). Many studies documented that if ADR programs were
“voluntary,” rather than mandatory, they were not well utilized (Wissler 2002, 1997; Kakalik et
al. 1996).

More recent studies of state court programs also show “mixed results,” including high
satisfaction rates and subsequent recommendations of ADR when participation is mandated
(Wissler 2000), but low usage when not mandated. Recent budgetary problems for both federal
and state courts have ironically increased the pressure to use ADR as a docket-clearing or
diversionary device at the same time that there are reduced funds available for rigorous court-

16
based evaluation research. Recent research indicates the parties (both litigants and their
lawyers) are often unfamiliar with what the different processes are (Shestowsky 2017) and so
notions of party choice in a process pluralist work may be idealistic and overly optimistic.
Despite the power of the “procedural justice” findings in socio-legal studies, some recent
research suggests that context matters a great deal, and, in some settings, the parties actually
do rate outcome above consideration of process fairness (Jennes & Calavita 2018).

In a series of important and rigorous research studies, Theodore Eisenberg and his colleagues at
Cornell Law School used publicly available aggregate data from the FJC, combined with data
they collected, on such issues as arbitration clauses in corporate contracts to test some of the
most controversial claims about comparisons among various forms of adjudication and other
forms of dispute resolution. Among their important findings are that employees fare no worse
in arbitration settings than in litigation settings in outcomes and may, in fact, save money and
time by resorting to arbitration (Eisenberg & Hill 2003–2004); and that plaintiff “win” rates in
adjudication may ultimately be worse in court than in other forms of dispute resolution because
appellate courts may overturn even fact findings favoring plaintiffs (e.g., Clermont & Eisenberg
2002). Perhaps somewhat ironically, Eisenberg and his colleagues also noted that despite all of
the controversies about the use of mandatory arbitration in contracts (especially in employment
and consumer settings), there is little evidence of increased use of mandatory arbitration
clauses in major corporations' contracts with one another (Eisenberg & Miller 2007).

A variety of other controversial claims about the comparative value of different processes have
also spawned inconclusive and contradictory studies. Cary Coglianese (1997) has long
questioned whether the use of negotiated rule-making or public policy consensus-building
processes has in fact decreased the cost of administrative rule-making or bolstered its
“consensual” and non-contested quality, against continuing claims by its proponents that well
managed multi-party negotiation processes can provide rule-making in administrative contexts
that is less likely to be challenged in post-hoc litigation. Freeman (1997) has provided one of the
most in-depth empirical case studies of several collaborative rule-making efforts, but her work is
challenged by Coglianese who insists on the need for more aggregate data and for comparisons
with more conventional rule-making administrative processes before drawing conclusions about
relative costs, compliance, and other post-hoc effects. In my own view, attempts to study and
compare these particular uses of ADR are even more problematic than attempts to match
aggregate cases in traditional litigation settings. Rule-making proceedings in front of different
U.S. federal agencies (Environmental Protection Agency, Federal Drug Administration,
Departments of Labor, Interior, etc.) are so factually, scientifically, legally, and historically
complex that comparisons across case types are quite resistant to rigorous comparisons.

17
One of the few rigorously successful studies of comparability of process is the Metro Court
study (Hermann, 1993; LaFree & Rack 1996) of outcomes and satisfaction rates among
adjudication and mediation users in New Mexico state courts. In an attempt to test Delgado et
al.'s (1985) thesis that private processes would be adversely experienced by minority litigants,
Michelle Hermann and her colleagues found far more complex relationships in the mix of
process used, demographics of litigants and third party neutrals, and case types. Some women,
for example, fared “better” in mediation outcomes, but were more skeptical of that process,
and somewhat distrusting of its informal quality (see Grillo 1991). Hispanics and some Blacks
preferred mediation, even when their outcomes were relatively inferior to what they might
have achieved in litigation, demonstrating some distrust of formal justice systems (particularly
among immigrants who carry memories of corrupt courts from their native lands). This study
generally refuted Delgado's “informality” hypotheses by demonstrating that factors other than
race, gender, and ethnicity such as case-type, repeat player effects, and whether parties had
representatives or not, accounted for more of the differences in both outcomes and satisfaction
rates. One important finding was that, in general, parties were more satisfied with processes in
which the third party neutral, whether a judge or mediator, “matched” their own ethnicity.
This study had a unique “natural” control setting, with almost equal numbers of Anglo, Hispanic,
and African-American judicial officers and mediators, and a relatively equal division by gender.
The complexity of the findings of this study and efforts to explain its multivariate relationships
are a model (yet to be successfully replicated) of the study of comparative dispute processes.

Research continues in a variety of settings. In the U.S. researchers have attempted to evaluate
the claim that “ADR” explains the phenomenon of the “vanishing trial” in the United States
(Galanter 2004; Hadfield 2004), producing, in the view of some, an inadequate number of
litigated cases for rule production.

If formal litigation and “law” is considered to cast a “shadow” on private dispute resolution
endowments in negotiation (Mnookin & Kornhauser 1979), private dispute processes also cast a
“competitive” shadow on public processes. Several commentators, besides this author, have
observed that formal litigation and various forms of ADR now compete with and affect each
other. Competition means disputants and their representatives make choices on such
dimensions as privacy, cost, timing, rule clarification, expert decision-makers, and rules of
procedure based on concerns about both efficiency and justice.

As the field of dispute resolution grows to describe and map the many new uses of and varieties
of dispute processes it is instructive to consider the dilemmas of rigorous study in this field:
1) the need for clarity in describing processes that vary as much internally as they do across
processes;

18
2) the great difficulty of developing accurate or truly “comparative” treatments of processes
for handling similar disputes;
3) the virtual impossibility of using experimental models that subject the same dispute to
several different treatments for comparison or for co-varying factors of influence (such as
case types, gender of disputants, etc.); and
4) the open boundaries and dynamism of the field itself.

V. The Future? (“It’s difficult to make predictions, especially about the future”
-attributed to Yogi Berra)

As the COVID epidemic closed courts in many jurisdictions in 2020, the use of online dispute
resolution (already being pioneered in many court systems, Susskind 2019) accelerated at an
enormous pace and remote, Zoom-assisted and other forms of non-in-person dispute resolution
were used for almost any form of court hearing (motion arguments, bail and arraignment in
criminal matters, depositions, arbitrations, mediations and even full trials, with and without
juries (Norton 2023). The jury is still out (ha ha!) on what the lasting effects will be of this
transformation of civil justice from in-person to machine assisted justice, but it is clear this form
of process is here to stay. Now challenged further by Artificial Intelligence and such programs as
ChatGPT which can engage in algorithmically generated legal documents, arguments, claims,
decision making and case disposition, it is clear that civil justice is no longer solely an in-person
human activity.

Ironically, these new methods of dispute resolution run somewhat counter to development in
peace and justice conflict resolution where new forms of dispute handling have developed
outside of courts (and parallel to them) to encourage apologies, reconciliation and restorative
justice in more person-to-person accountability in settings without formal legal rules and with
different conceptions of processing (not adjudicating) the past and moving instead to a focus on
future community building and new norm generation (Menkel-Meadow 2007). The meaning
and evaluation of what “justice” is now (e.g. in transitional justice in international and post-civil-
war and ethnic conflict) varies enormously by venue (domestic, international), type of matter
and the parties’ relation to each other and motivations to seek peace, as well as justice.

Recent extensions of ADR to “online dispute resolution,” truth and reconciliation commissions,
transactional mediation in contract formation, not to mention such conventional uses of various
forms of dispute resolution in diplomacy, market transactions, family relations, and ordinary
day-today disputes and conflicts (Menkel-Meadow 2022), suggest that the domain of dispute-
resolution research is far more capacious than assessing how disputes are managed in formal
legal arenas such as lawsuits or courts. These new domains of dispute resolution suggest a

19
number of new and interesting research questions, combined with the still older research
questions, about the comparative merits of different processes:

1) Must dispute resolution be conducted face-to-face to be effective? What will the role of new
technologies be in dispute resolution?
2) When can disputing “culture” be changed? Can people be taught to “collaborate” or is the
assumption of scarcity and competition the human default? What difference would it make
in lawyering behavior if legal rules allowed “apologies” to be admitted as evidence? Can
publicity about alternative forms of dispute resolution (e.g., South Africa's Truth and
Reconciliation Commission) change political or disputing cultures?
3) Do particular domains (e.g., transnational and inter-organizational) or subject matters (e.g.,
ongoing relationships) require particular forms of dispute processing? In other words, is
“trans-substantive” process a misconceived or impossible notion? What would non-
transubstantive procedural rules look like?
4) What factors influence party choice in dispute processes?
5) Does any form of dispute resolution require particular expertise?
6) When should dispute processing be public and transparent and when should parties be
permitted to resolve disputes privately?
7) Does a legal system require totally public dispute processes for all of its conflicts?
8) Can we ever fully study and know whether particular structural patterns of parties, case
types, and processes are “better” for the parties or for outsiders than any other set of
process structures or choices? (Menkel-Meadow 2010).

Process pluralism means there is no one process for all the different disputes and conflicts that
human beings have. It is clear to this author that assessing what civil justice means, to different
people in different contexts, is also plural. One size and one measure will not fit all.

20
References

Amsler, Lisa Blomgren, Janet Martinez and Stephanie Smith, (2020), Dispute System Design”
Preventing, Managing and Resolving Conflict Stanford University Press.

Bandes, Susan & Neal Feigenson (2021), “ Empathy and Remote Legal Proceedings,”
Southwestern L. Rev. 51: 20-31.

Berman, G, Joel Feinblatt and S. Glazer (2005). Good Courts: The Case for Problem Solving
Justice New Press.

Brazil, Wayne (1990), “A Close Look at Three Court-Sponsored ADR Programs: Why They Exist,
How They Operate, What They Deliver and Whether They Threaten Important Values,” U.
Chicago L. F. 1990: 303.

Burger, Warren (1982), “Isn’t There a Better Way?” ABA J. 68:274.

Center for Public Resources, The CPR Legal Program Mini-Trial Handbook. (Eric Green, ed.),
CPR Press.

Cohen, Amy and Aya Gruber (2019) “Governance Feminism in New York’s Human Trafficking
Intervention Courts,” in Governance Feminism: A Handbook. University of Minn. Press.

Clermont, Kevin and Theodore Eisenberg (2002), “Plaintiphobia in the appellate courts: Civil
Rights Really Do Differ from Negotiable Instruments,” U. Ill. L. Rev. 2002(4): 947-77.

Coglianese, Cary (1997). “Assessing Consensus: The Promise and Performance of Negotiated
Rule-making,” Duke L. J. 46: 1255.

Coser, Lewis (1956). The Functions of Social Conflict. Free Press.

Deutsch Morton (1973) The Resolution of Conflict: Constructive and Destructive Processes. Yale
Univ. Press.

Delgado, Richard, C. Dunn, P. Brown, H. Lee & D. Gubert (1985) “ Fairness and Formality:
Minimizing the Risk of Prejudice in Alternative Dispute Resolution,” 1985 Wisc. L. Rev. 1359-
1405.

21
Eisenberg, Theodore and Elizabeth Hill ( 2003-2004), “Arbitration and Litigation of Employment
Claims: An Empirical Comparison,” Dispute Resol. J. 44-63

------------------- and G.P. Miller (2007), “The Flight From Arbitration: An Empirical Study of Ex
Ante Arbitration Clauses in the Contracts of Publicly Held Companies,” 56 De Paul L. Rev. 335.

Feinberg, Kenneth (2006). What’s A Life Worth? The Unprecedented Effort to Compensate the
Victims of 9/11. Public Affairs.

Felstiner, William, Richard Abel and Austen Sarat (1980-81), “The Emergence and
Transformation of Disputes: Naming, Blaming, and Claiming,” Law Soc. Rev. 15: 631-654.

Fisher, Roger, William Ury and Bruce Patton, Getting to YES; Negotiating Agreement Without
Giving In (3rd ed. 2011).

Follett, Mary Parker (1995), “Constructive Conflict,” in Mary Parker Follett: A Prophet of
Management Collection of Writings from the 1920s (Pauline Graham, ed.) Harvard Business
School Press..

Freeman, Jody (1997), “Collaborative Governance in the Administrative State, “ UCLA L. Rev.
45: 1.

Fuller, Lon (2001). “The Forms and Limits of Adjudication,” in The Principles of Social Order:
Selected Essays of Lon L. Fuller (Kenneth Winston, ed.) Hart Publishing.

------------------(1971) “Mediation: Its Forms and Functions,” So. Calif. L. Rev. 44:305.

------------------(1963), “Collective Bargaining and the Arbitrator,” 1963 Wis. L. Rev. 3.

Galanter, Marc (2004), “The Vanishing Trial: An Examination of Trials and Related Matters in
Federal and State Courts” J. Empirical Legal Stud. 1: 459.

Gilles, M. (2016) “The Day Doctrine Died: Private Arbitration and the End of Law,” 2016(2) U. Ill.
L. Rev.: 371-424.

Gulliver, P. H. (1979) Disputes and Negotiation: A Cross-Cultural Perspective. Academic Press.

22
Grillo, Trina (1991) “The Mediation Alternative: Process Dangers for Women,” 100 Yale L. J
1545:610.

Habermas, Jurgen (1998). Between Facts and Norms: Contributions to a Discourse Theory of Law
and Democracy. MIT Press.

Hadfield, Gillian (2004). “Where Have all the Trials Gone? Settlements, Non-Trial Adjudication
and Statistical Artifacts in the Changing Disposition of Federal Cases, J. of Empirical Legal
Studies 1:705-34.

Harter, Philip (1982). “Negotiating Regulations: A Cure for the Malaise,” Geo. L. J. 71:1.

Hensler, Deborah (1995). “A Glass Half Full, a Glass Half Empty: The Use of Alternative Dispute
Resolution in Mass Personal Injury Litigation,” Texas. L. Rev. 73: 1587.

Hermann, Michelle (1993). The Metro Court Project Final Report. University of New Mexico
Center for the Study and Resolution of Disputes.

Jennes, Valerie & Kitty Calavita (2018), “It Depends on the Outcome: Prisoner’s Grievances and
Perceptions of Justice,” Law & Soc’y Rev. 52:41-72.

Kakalik, J.S., T. Dunworth, L.A. Hill. D. McCaffrey, M.. Oshiro, N.M. Pace and M.E. Viana (1996).
An Evaluation of Mediation and Early Neutral Evaluation Under the Civil Justice Reform Act.
RAND Corp.

Katsh, Ethan and Orna Rabinovich-Einy, (2017), Digital Justice: Technology and the Internet of
Disputes. Oxford University Press.

Kiser, Randall (2011). How Leading Lawyers Think: Expert Insights into Judgment and Advocacy.
Springer.

LaFree, G. and C. Rack (1996), “The Effects of Participants’ Ethnicity and Gender on Monetary
Outcomes in Mediated and Adjudicated Civil Cases,” 30 L. & Soc’y Rev.: 767-97.

McGovern, Francis (1986). “ Toward a Functional Approach for Managing Complex Litigation,” U.
Chicago L. Rev. 53: 440.

23
______________(2009). “Dispute System Design: The United Nations Compensation
Commission,” Harvard Neg. L. Rev. 14:171.

Menkel-Meadow, Carrie (2022), Very Short Introduction to Negotiation (Oxford University

Press).

_________________(2020), “What is an Appropriate Measure of Litigation? Quantification,

Qualification and Differentiation of Dispute Resolution,” Onati Socio-legal Series, doi:
[Link]

___________________(2019), “Hybrid and Mixed Processes: Integrities of Process Pluralism,” in

Comparative Dispute Resolution Research Handbook (Marica Moscati. Michael Palmer &
Marion Roberts, ed.) Elgar Publishing.

--------------------(2018) “Alternative Dispute Resolution,” Max Planck Encyclopedia of

International Procedural Law. Oxford Public International Law. (Http://[Link]).

________________(2014) “ Alternative and Appropriate Dispute Resolution in Context: Formal,

Informal and Semi-Formal Legal Processes,” in The Handbook of Conflict Resolution: Theory and
Practice (Peter Coleman, Morton Deutsch and Eric Marcus, eds). Wiley Press. (an earlier version
in Civil Procedure in Cross-Cultural Dialogue :Eurasia Context (Dmitri Malesin, Statut Publishing
House, Moscow, Russia (2012).

__________________(2013), “The Historical Contingencies of Conflict Resolution,” Int’l J. of

Conflict Engagement and Recogn. 1:32-55.

--------------------------------(2012), Multi-Party Dispute Resolution, Democracy and Decision

Making. Ashgate.

--------------------(2010), “Dispute Resolution” in Oxford Handbook of Empirical Legal Studies

(Peter Cane and Herbert Kritzer, eds.) Oxford University Press.

------------------------ (2007) “Restorative Justice: What is it and Does it Work? Annual Rev. of Law
and Soc. Science 10: 1-27. Annual Reviews.

24
-------------(2005). “Roots and Inspirations: A Brief History of the Foundations of Dispute
Resolution,” in The Handbook of Dispute Resolution (Michael L. Moffitt and Robert C. Bordone,
eds.) Jossey-Bass-Wiley Publications.

-------------(2004-2005). “The Lawyer’s Role(s) in Deliberative Democracy,” Nevada L. J. 5:347-

69.

--------------(2003). Dispute Processing and Conflict Resolution. Ashgate Press.

-------------(2001). “Aha! Is Creativity Possible in Legal Problem Solving and Teachable in Legal
Education? Harvard Neg. L. Rev. 6:97.

-------------------(2000), “Mothers and Fathers of Invention: The Intellectual Founders of ADR,”

Ohio St. J. of Disp. Resolu. 16:1.

----------------(1998) “Taking the Mass Out of Mass Torts: Reflections of a Dalkon Shield Arbitrator
on Alternative Dispute Resolution, Judging, Neutrality, Gender and Process,” Loyola LA L. Rev.
31: 513.

_____________(1997) “When Dispute Resolution Begets Disputes of its Own: Conflicts Among
Dispute Professionals” UCLA L. Rev. 44: 1871.

-----------------(1995a) “Whose Dispute Is it Anyway/ A Philosophical and Democratic Defense of

Settlement (in some cases). Georgetown L. J. 88:2663-2696.

--------------------(1995b) “Ethics and Settlement of Mass Torts: When the Rules Meet the Road,”
Cornell L. Rev. 80: 1159.

-----------------(1985) “For and Against Settlement: Uses and Abuses of the Mandatory Settlement
Conference,” UCLA L. Rev. 33:485.

--------------------(1984), “Toward Another View of Legal Negotiations; The Structure of Problem

Solving, UCLA L. Rev. 31:754.

Menkel-Meadow, Carrie and Robert Dingwall, (2019)“Negotiating Against a Script” in

Negotiation Essentials for Lawyers (Andrea Kupfer Schneider & Christopher Honeyman, eds.
American Bar Association

25
Menkel-Meadow, Carrie and Bryant Garth (2010), “Civil Procedure and Courts,” in Oxford
Handbook of Empirical Legal Studies (Peter Cane and Herbert Kritzer, eds). Oxford University
Press.

Menkel-Meadow, Carrie, Lela Love, Andrea Kupfer Schneider, Michael Moffitt & Kristen Blankley,
(2025) Dispute Resolution: Beyond the Adversary Model (4th ed.) Aspen Publishing.

Menkel-Meadow, Carrie, Lela Love, Andrea Kupfer Schneider and Michael Moffitt, (2019)
Dispute Resolution: Beyond the Adversarial Model (3rd ed.) Aspen Publishing.

Merry Sally and Neal Milner (1993). The Possibility of Popular Justice: A Case Study of
Community Mediation in the United States. University of Michigan Press.

Mnookin, Robert H. and Lewis Kornhauser, (1979) “Bargaining in the Shadow of the Law: The
Case of Divorce,” Yale L. J. 88:950-97.

Norton, Katherine (2023), “Accessing Justice in Hybrid Courts: Addressing the Needs of Low-
Income Litigants in Blended in-Person and Virtual Proceedings,” Geo. J. on Poverty L & Policy 30:
499-544.

Resnik, Judith (2015), “ Diffusing Disputes: The Public in the Private of Adjudication, the Private
in Courts and the Erasure of Rights,” Yale L.J. 124: 2804.

Rosenberg, Maurice (1964). The Pre-Trial Conference and Effective Justice. Columbia Univ.
Press.

Sandefur, Rebecca (2016), “ What We Know and Need to Know About the Legal Needs of the
Public, “ South Carolina L. Rev. 67: 443-49.

Sander, Frank E. A. (1976), “Varieties of Dispute Processing, “ 70 F.R.D. 111.

Sander, Frank E.A. & Stephen B. Goldberg (1994), “Fitting the Forum to the Fuss: A User Friendly
Guide to Selecting An ADR Procedure,” Negotiation Journal 10: 49.

Shapiro, Martin (1981). Courts: A Comparative and Political Analysis. University of Chicago
Press.

26
Shestowsky, Donna (2017) “When Ignorance is Not Bliss: An Empirical Study of Litigants’
Awareness of Court Sponsored Alternative Dispute Resolution Programs,” Harv. Neg. L. Rev. 22.

Sternlight, Jean (2012). “Tsunami: AT&T Mobility v. Concepcion Impedes Access to Justice,
Oregon L. Rev. 90:703.

--------------(2020) “Justice in a Brave New World? Technology, Trials and Dispute Resolution-
Moving Beyond the Truth to Justice,” Conn. L. Rev. 22.

Stienstra, Donna, M. Johnson, P. Lombard and M. Pecherski (1997). Report to the Judicial
Conference Committee on Court Administration and Case Management: A Study of the First
Demonstration Programs Established Under the Civil Justice Reform Act of 1990. Federal Judicial
Center.

Susskind, Lawrence, S. McKearnan & Jennifer Thomas Larmer (eds). 1999. The Consensus
Building Handbook. Sage.

Susskind, Richard (2019) Online Courts and the Future of Justice. Oxford University Press.

Tyler, Tom and Allan Lind, (2001) “Procedural Justice,” in Handbook of Justice Research in Law
(Joseph Sanders and Lee Hamilton, eds). Springer.

Walton, Richard and Robert McKersie (1965). A Behavioral Theory of Labor Negotiations: An
Analysis of a Social Interaction System. Cornell University Press.

Welsh, Nancy (2006), “Perceptions of Fairness,” in The Negotiator’s Fieldbook: The Desk
Reference for the Experienced Negotiator (Christopher Honeyman and Andrea Kupfer Schneider,
eds). ABA Press.

Wissler, Roselle (1997). “The Effects of Mandatory Mediation: Empirical Research on the
Experience of Small Claims and Common Pleas Courts,” 33 Willamette L. Rev. 565-604.

--------------(2000) Attorneys Use of ADR is Crucial to Their Willingness to Recommend it to

Clients,” Disp. Resol. Mag. 36.

_______________”The Effectiveness of Court-Connected Dispute Resolution in Civil Cases,”

Conflict Res. Q. 22:55-88.

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Cases Cited

AT&T Mobility v. Concepcion 563 U.S. 333 (2011)

Brown v. Board of Education 347 U.S. 483 (1954)

Dobbs v. Jackson Women’s Health Organization 587 U.S. 215 (2022)

Students for Fair Admissions v. Harvard University and the University of North Carolina 600 U.S.
181 (2023).

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