As with State Education, Many Choose Alternatives to Government Courts
However, there are some people, thought crazy by the majority, who don’t believe government needs to own or operate schools. They seem to believe that education can be managed independent of taxes and state authority through voluntary associations.
Similarly, there are people who don’t believe that state and federal governments are any better managing courts and delivering justice than they are managing schools and delivering education.
Today and through history, students can discover a broad spectrum of alternatives to federal courts for enforcing contracts, adjudicating disputes, and prosecuting accused lawbreakers. Let’s start with some of the least radical: private legal systems already in operation.
Visa, MasterCard, and American Express, for example, have their own court systems for adjudicating disputes between card users and vendors. In part because the government courts are very slow to adjudicate disputes, card companies developed their our legal systems. When you sign up for a Visa, MasterCard, or American Express card, you agree to use their in-house system if you have a dispute over something you purchased. For details on credit card systems, see “Private Dispute Resolution in the Card Context: Structure, Reputation, and Incentives” by Andrew Morriss and Jason Kolosec. The authors also discuss federal legislation and regulation of credit card disputes (p. 80) and are skeptical regulations improved privately-developed systems.
For more on Alternate Dispute Resolution (ADR) at the federal court level, see “Federal ADR chips away at court docket,” in Buffalo Law Journal, June 22, 2015. The federal court Western District of New York project of:
automatically referring civil cases filed there to mediation was Skretny’s baby and, under his leadership, became a pilot program in 2006. Now that the program has been fully instituted and is a model for other courts nationwide …
The problem was court overload and backlog delaying cases “67 months”, so off-loading civil cases to ADR seemed a good idea:
The Western District, which is one of four in New York state and includes divisions in both Buffalo and Rochester, was dealing with nearly 3,400 cases annually, before the advent of the ADR program.
Radlin said when he travels around to make presentations about the program, telling others about the district’s calendar-year workload almost always brings gasps. According to a recent study, it takes a civil case going through the litigation process in the district 67 months from the initial filing to completion.
“That’s not justice,” Radlin said.
The success of the program suggests other federal courts could adopt automatic ADR:
Last week, Radlin went to the Cardozo Law School in Manhattan to attend the annual conference of a national ADR group. Currently, there are only eight other federal districts with such programs and administrators. They all met last year in Kansas City to discuss features of their respective programs.
“It’s flattering to be contacted to speak and I learn that there are these fairly muscular groups that are energetically promoting and making more efficient and acceptable the presence of ADR,” he said.
While ADR programs have gained momentum around the nation, not many are an automatic process such as the Western District of New York’s. Sharon Porcellio, who was among the original 24 mediators in the federal program, said what makes it so effective is that neither party has to ask for it. Oftentimes, she added, neither wants to be the side asking to mediate because it could make their case look weaker.
The ADR approach can save time and money, as well emotional trauma:
Since many cases settle before trial anyway, she said, why not try to settle them as early as possible to save money and the emotional twists and turns that often come with litigation, as well as helping relieve the court docket. Through mediation, unique agreements that many times cannot be accomplished in court can be reached, she added.
This 2012 U.S. Courts page provides overview of ADR “Alternative Dispute Resolution Now an Established Practice in Federal Courts.”
With ADR established for many areas of federal court cases, and with the experience so far successful, are there areas where ADR could be expanded?
This Mediate.com article takes a look at “The Future of Alternative Dispute Resolution,” and provides some recent history:
Following the 1968 Kerner Report for the National Advisory Commission on Civil Disorder, which outlined ways the private sector could play a role, foundations began making grants to address the problems. The Ford and Rockefeller foundations granted funds to create the National Center for Dispute Settlement. …
Chief Justice Warren Burger (1969-1984) spent much of his tenure pushing court reform. He believed trials were too costly and inefficient. In 1976, he convened a conference of lawyers, judges and legal scholars to discuss alternatives. In his opening remarks, he encouraged increased exploration and use of informal dispute resolution. …
The 1990 Civil Justice Reform Act required Federal District Court to develop plans to expand the use of ADR. The Uniform Mediation Act in 2002 attempted to standardize the way mediation is practiced in all 50 states.
ADR organizations include the American Arbitration Association, and Mediate.com has a webpage of “Useful ADR Sites on the WorldWideWeb.“
The Broader Goal: Law Customers Choosing Legal Systems
Now that we’ve looked at status quo ADR use by the federal court system, we can explore federal court and federal law alternatives more broadly with a look at polycentric law.
Just as choice in education is a good thing for students and families (and for teachers who would have more choices on where to teach), choice in legal systems is a good thing for consumers and producers of goods and services.
Legal scholar Tom Bell writes on the advantages of choice in legal systems in his 2014 Freeman article “What Is Polycentric Law? To make legal systems better, we must make them compete against each other.” We appreciate choices for goods and services, so, Bell argues:
Polycentric law simply extends that observation from commercial services to government ones. Just as competition makes life better for those who seek banking, cleaning, and pet care services, it can benefit those seeking fair and efficient legal systems. Competition helps consumers and citizens alike.
Polycentric law regards the legal services that governments provide—defining rules, policing their application, and settling disputes—as a ripe field for competition. When a government claims a monopoly in the law, it tends to neglect its subjects’ needs. In a polycentric system, however, providers of legal services care more about what consumers want. They have to, if they don’t want to go out of business.