ADR Should Not Be an ‘Either-Or’ Question

Issue November/December 2023 November 2023 By The Late Judge Edward M. Ginsburg
Dispute Resolution Section Review
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The Late Judge Edward M. Ginsburg

“The late Honorable Edward M. Ginsburg was a strong proponent of the benefits of dispute resolution, as well as a practitioner and teacher of dispute resolution. How better to honor his memory and to “spread the word” about dispute resolution than to republish this article by Judge Ginsburg that originally appeared in the Oct. 12, 2009, issue of Massachusetts Lawyers Weekly, which has kindly given its permission to republish.”

— Hon. David G. Sacks (ret.)

Q. As a former trial lawyer and judge, how do you view the growing interest in alternative dispute resolution?

A. As a trial lawyer for 19 years and a judge for more than 25 years, I could easily look upon the increased interest in ADR as a rejection of the adversary system that I was groomed in law school to believe was the best possible design to get at the truth and resolve disputes.

But that is not the case.

The late chief justice of the Supreme Judicial Court, Edward Hennessey, took great pride in the district courts in Massachusetts becoming full-time courts with full-time judges and formal rules of procedure.

To him and some other thoughtful lawyers, ADR represented a step backward in that mainly the poor would be shunted off to a less structured form of justice. He feared that the relaxation of the formal rules of procedure, which he had worked so diligently to impose on all courts, would result in the poor being relegated to a dispute resolution process in which due process would be shortchanged.

Contrary to Judge Hennessey's fear, it has been the more affluent segments of society that have taken the initiative in promoting ADR.

Insurance companies looking for a more predictable and efficient way to process claims have encouraged mediation and arbitration. Lawyers representing tort plaintiffs have accepted ADR as a means of getting faster and more certain results. In the area of family law, rather than getting bogged down in the overworked and underfunded court system, lawyers whose clients can afford it are opting out of the public court system in favor of private dispute resolution.

It is indeed ironic that the poor, whose rights Judge Hennessey was so concerned with protecting, have been left to cope with the overworked and underfunded court system. This trend mirrors what has happened to the inner-city public schools: Those who can afford it have opted out and turned to private schools.

The flexibility provided by various forms of ADR is attractive in areas where the strict adversarial process inhibits a satisfactory result. Multi-party, multi-construction disputes are particularly appropriate for mediation and compromise. When parties have to continue working together after the immediate issue is resolved, mediation, which provides a place for the participants to talk in a non-structured environment, often sets the stage for future cooperation. Family law and community disputes likewise fit into that category.

Those matters in which the parties from diverse backgrounds and life experiences have different perceptions as to what is happening do not fit well into the traditional court setting. The recent Cambridge incident involving Professor Henry Louis Gates, Sgt. James Crowley and President Barack Obama is a case in point. In hindsight, it is understandable why the Black professor overreacted to a white police officer entering his home, and why the police officer who had spent his professional career teaching his colleagues how to promote racial harmony would overreact to being called a racist.

It is even understandable why President Obama, who is usually cool, calm and measured, used language that was best left unsaid. His life experience and work as a community organizer in Chicago had certainly exposed him to racial intolerance.

Fortunately, the Middlesex County district attorney recognized the dynamics involved, and the matter did not end up in court. Although inviting the parties to sit down and share a beer at the White House came off as somewhat contrived and awkward, the symbolism of providing an informal place for the parties to discuss their feelings should not be ignored.

The court system has taken some steps to promote ADR, such as setting standards for lawyers who want to be eligible for court-connected ADR and requiring attorneys to inform clients of the availability of ADR (a requirement honored more in theory than practice).

The primary impetus for ADR has come from outside the court system. Demand has risen to the point where Massachusetts Continuing Legal Education is putting on an all-day ADR conference this fall that will focus on educating lawyers on how to select and utilize the best ADR option for their clients.

The American Bar Association has already emailed an announcement of a massive ADR program in connection with its 2010 annual meeting next August in San Francisco. The ABA program will explore the use of ADR in various areas of the law. According to the email, more than 1,000 attendees are anticipated.

In responding to how I as a longtime lawyer and judge view the growing interest in ADR, I endorse the position of Judge Gail Perlman, who is chair of the Court ADR Committee, when she says that the question should not be either-or but how the formal court system and various forms of ADR should work together to better serve the public.

Although the traditional adversarial process forms the bedrock on which the criminal justice system and much of the civil law system rest, ADR meets a growing demand in an increasingly complex society.

The Late Judge Edward M. Ginsburg retired from the Probate & Family Court in 2002. He headed Senior Partners for Justice, a program that provides the indigent in Probate Court with lawyers.