Have women improved the way law works by encouraging non-confrontational systems such as negotiation and arbitration, or have women lost their voices and the backing of the public by allowing their cases to be settled early through ADR? There is a case to be made for both. See, generally, feminism and negotiation and feminism and ADR.
Women in the law have, in general, brought a softer, healing touch to situations in, for example, family law, where men used to proverbially butt heads and accomplish nothing but angering each side. Where conflict used to arise now settlement is achieved, and keeping suits from reaching litigation helps the healing process by not airing dirty laundry in the public arena. However, in cases such as sexual harassment, sometimes it's more helpful to air the laundry, to prevent such acts from taking place again in the future. In those cases, ADR can act as the old boy's club, stifling women's discourse and winning the battle while losing the war. Thus it is useful to notice that ADR can be a feminist's friend or a feminist's enemy, depending on the facts at hand. But I feel strongly that women as a whole have improved the legal system by emphasizing comprimise instead of competition, emphasizing a win-win situation instead of a win-lose. That is the true point of settlement.
I completely agree that ADR is a double-edged sword, particularly arbitration. As I have discussed previously, compulsory arbitration clauses have silenced consumers and employees by forcing them into a potentially biased and essentially unappealable dispute forum.
ReplyDeleteAs for the other types of ADR, they are often the most appropriate dispute resolution mechanism. Often parties have a longstanding relationship and have an interest in preserving that relationship. There are cases that involve civil rights issues that should be tried in a public forum, but the vast majority of cases are better suited for ADR.
I take issue with mediation's reputation as a "softer" type of law. Although mediation is interest-based and more holistic than a traditional trial, it is also incredibly difficult and aggressive. The mediator herself is not aggressive, but the parties are not compelled by the hearsay rule and often take advantage of the mandatory confidentiality clause. This permits them to say hateful things they would never have the opportunity to say in a courtroom.
Further, a judge arguably has an easier job than a mediator. A judge only has to decide the law, regardless of what either party wants. A mediator, on the other hand, has to help the parties come to a mutually acceptable resolution that may include multiple solutions far beyond the remedies that the law provides.
As dockets become more overwhelmed, increasingly courts are incorporating ADR. If more women than men are gaining expertise in this field, they will have acquired a niche in a growing market. This seems to me to be a true "win-win situation."