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 (eg privatizing justice, power inequities, lack of precedents and transparency), their jurisprudential significance, and their modern promise to increase access to justice.
Menkel-Meadow, Carrie J, Dispute Resolution as Civil Justice: The Evolution of Process Pluralism (September 25, 2024), UC Irvine School of Law Research Paper No 2024-20; Forthcoming in Elgar Handbook on Civil Justice (Anne Bloom, David Engel and Richard Jolly, eds).
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