RESOLVING DISPUTES DIFFERENTLY: ADIEU TO ADVERSARY JUSTICE? BY MAURICE ROSENBERG* INTRODUCTION Some observers speak of the "Alternatives Movement" (that is, alternatives to courts) as if utilizing non-judicial methods were new and revolutionary. In fact, there have been other-than-adjudicatory methods of resolving legal disputes for many years and in many forms. What is new in recent years is the intensity of interest in non- court options. This has led to a proliferating use of familiar alterna- tives and to serious efforts to discover new ones that will attract and satisfy users. So far the efforts have not come close to displacing the courts as the most popular arenas for legal disputation. The latest available comprehensive figures on state court filings show that going to court remains a major American preoccupation: More than 14.3 million new civil and 9.3 million new crimi- nal cases were filed in limited and general jurisdiction state courts in 1985, while state appellate courts recorded more than 180,000 new filings.' But suppose the alternative methods prove so attractive that they do compete successfully with the courts and significantly shrink the volume of court-bound litigation. What impact would such a shift have on the way lawyers work to protect the interests of clients who become involved in legal disputes? Will increased use of non-court alternatives diminish the influence of the adversary process in the work of lawyers? That is the focus of this Article. In particular: (1) it examines the elements, characteristics and significance of the adversary process in the existing dispute resolution system; (2) it evaluates the asserted pros, cons, benefits and costs of the adversary process; (3) it examines the usefulness of the process when employed in the main types of alternatives; and (4) it speculates about the con- tinued importance of the adversary process for the dispute resolution system and for the work of lawyers in the light of important changes * Harold R. Medina Professor of Procedural Jurisprudence, Columbia Univer- sity School of Law. This Article is adapted from the author's lecture delivered as part of Creighton University School of Law's Te Poel Lecture Series, March 31, 1987. 1. See 15 REPORT OF THE NATIONAL CENTER FOR STATE COURTS 1 (Jan. 1988). Not every state is included in the totals. There is every reason to suppose the com- plete nationwide total of 1987 filings would be significantly higher than the figures quoted. For instance, including the federal courts would alone add nearly 300,000 cases. CREIGHTON LAW REVIEW [Vol. 21 both inside and outside the courts. Will the process be employed to a substantial extent by all or some of the alternative mechanisms as these are more widely used? If so, in ways familiar to us today or in modified form? And what of the adversary dynamic in the courts themselves - will it undergo much change and, if so, in what ways? In my view, the adversary process performs important functions in the dispute resolution field. It would be a serious loss if that pro- cess were destroyed or substantially weakened. On the other hand, the particular strengths of the adversary process are not useful in every situation. The adversary process is not always a blessing when a legal dispute breaks out. I. DIMENSIONS OF THE ADVERSARY PROCESS Once a legal dispute ripens beyond the stages of grievance and complaint, there are two basic ways to resolve it: an imposed solution or an agreed solution; that is, by a decision or a settlement. A settle- ment obviously can be reached by the disputants themselves, with no one else involved. On the other hand, an imposed decision always re- quires a third party. However, it is not the presence or absence of the third party that is the critical factor in the dynamics of dispute reso- lution. It is the involvement of the third party as decision-maker that spells the difference. When the task of deciding belongs to a third party the adversarial dynamic can come into full play. This linkage between the adversary process and the imposed-decision mode of dispute resolution is pivotal. As long as a mechanism is being used to obtain imposed resolutions, it will probably find benefit in calling upon the adversary process. If, instead, the objective is to en- courage the parties to reach an agreed solution, there will be no vir- tue in the adversary process. The very nature of that process dictates the difference. No realistic assessment of the impact of the adversary process is possible without recognizing three faces of the concept. Usually in legal contexts the term conveys the idea of combat - ordinarily a contest in a forensic setting between trained champions. The associa- tion is understandable. The most vivid historical antecedent of mod- ern-day courtroom contests is the ancient common-law trial by battle with its image of clashing gladiators in fights to the finish. Webster's dictionary lends support to that sense of the word by defining "adver- sary" as "involving the Anglo-American system of procedure for con- ducting trials under strict rules of evidence with the right of cross- examination and argument, one party with his witnesses striving to prove the facts essential to his case and the other party striving to 1988] ALTERNATIVE DISPUTE RESOLUTIONS disprove those facts or to establish an affirmative defense."2 In the popular mind that image of contentious gladiators cham- pioning their clients' causes is undoubtedly the prevailing one. Cer- tainly, it is correct in a partial way. Yet it fails to bring into focus two other aspects of the adversary process that are central to the discus- sion. For one, there is the added dimension that concerns the power of the litigants relative to the power of the court. In over-stated terms that relationship is conveyed by the phrase "active advocates, ' passive judges."3 Finally, there is a meaning of adversary process that reflects the tension between the values of the adversary system and the law's in- terest in unearthing the whole truth by full, accurate fact-finding. The adversary motif accords each side a privilege, within limits, to shun, withhold or even obscure the truth instead of being bound to reveal it fully. This is sometimes derided as the "sporting theory of justice," but without question the idea that "a trial is a contest of wits, not a search for the truth" is widely accepted and acted upon. This dimension of the adversary process, although suggestive of the gladiatorial aspect, is notably different. To say the lawyer is to serve as the client's champion does not make known what rules the champion must obey in defending the client's interests. To what extent is the lawyer's primary duty to ad- vance the client's cause and to what extent is it to unearth the truth? When does one obligation override the other? Sometimes the rules of engagement for legal gladiators permit them to hold back parts of the truth; especially when the client is be- ing defended against an accusation of crime. At other times the rules require the lawyer to reveal information that damages a client's in- terests. To accord a lawyer the role of gladiator does not carry with it the implication that the lawyer is thereby freed from the obligation to try to unearth the truth while striving to advance the client's cause. A lawyer-gladiator must fight under the banner of truth as well as under the flag of client interests. Similarly, the fact that the lawyer is working under the "party- control" license of the adversary process does not mean he or she is necessarily free to invoke its truth-limiting feature. The fact that the system allows the lawyers a large measure of control in defining the issues in a lawsuit does not imply an unlimited privilege to withhold 2. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 31 (3d ed. 1961). 3. Cf. Langbein, The German Advantage in Civil Procedure, 52 U. CHI. L. REV. 823 (1985). The author comments that one of the two "fundamental differences be- tween German and Anglo-American civil procedure" is that "the court rather than the parties' lawyers takes the main responsibility for gathering and sifting evidence." Id. at 826. CREIGHTON LAW REVIEW [Vol. 21 the truth about a matter that has been put in issue. For example, a district attorney who wields a large measure of control over a case in deciding whether to seek an indictment, which counts to charge, which suspects to name as defendants, which witnesses to call at the trial and which questions to ask, is at the same time duty-bound to reveal evidence favorable to the defense. Thus, the stern duty to aid the search for truth often co-exists with a high level of control of the case. Civil cases are different. Both sides find themselves on the one hand free to control certain aspects of the lawsuit to avoid disclosing harmful material, but on the other hand bound to reveal a great amount of evidence they would not volunteer, possibly including evi- dence that badly damages their client's interests. One can readily conceive of a system in which the lawyers vigor- ously champion their client's cause even though they have little con- trol of the processing of their dispute and little chance to inhibit the whole truth because virtually all power to frame the issues and search for the truth belongs to the judges. Indeed, many American lawyers picture just that sort of system when they envision the so- called "inquisitorial" systems that are supposed to flourish in non- English-speaking countries. Their picture of the inquisitorial charac- ter of litigation in civil-law countries of Europe is much overdrawn. It flows from the assumption that lawyers there are inert functiona- ries rather than vigorous advocates. However, Marvin E. Frankel, a leading student of this subject, concluded that "all judicial 'systems' in the Western world are today 'adversary' in the minimal sense that parties in contention, including parties contending with the state, are entitled to be heard through independent, trained, partisan legal rep- resentatives."'4 That is to say, in most countries in Europe the parti- san lawyers play a larger role in the conduct of litigation than prevalent American myths about inquisitorial systems acknowledge. Moreover, the judges there are not free to pursue truth and justice on their own by launching spontaneous complaints or investigations. In the words of a distinguished Finnish jurist, "the judicial procedure is not initiated by the court ex officio. It needs a claimant, a plaintiff, an action to be initiated and to be carried on further: nemo judex ''5 sine actore. In recognizing the importance of the party's initiative and the ad- vocate's independence, the civil-law countries take a position midway between the most extreme common-law view and the view in some Far Eastern societies. As to the former, an English authority is 4. M. FRANKEL, PARTISAN JUSTICE 7 (1978). 5. C. Olsson, Independence from the Judge's Point of View, Finnish Judicial As- sociation, Periodical No. 1-2/19/81, pp.l13-17. 19881 ALTERNATIVE DISPUTE RESOLUTIONS quoted for a sharply restricted conception of the judge's powers vis-a- vis the litigants': English "adversary procedure" requires the judge to be a completely independent arbiter, aloof from the contest tak- ing place before him between the parties. The parties con- trol not only the commencement of the action, but also the issues and defenses raised; in short, theoretically, the parties are the complete masters of their litigation. The judge can- not insist that a particular witness be called or call a witness himself, nor can he insist that an issue be raised or argued which is not raised by the parties in the pleadings. He can, of course, ask a question of a witness for clarification's sake, but if he goes too far with his questioning, or intrudes too much into the case, his decision can be appealed from.6 In contrast, some Far Eastern societies not only reject the prem- ises of the adversary system, they condemn the very enterprise of carrying disputes to court. From their standpoint, the act of suing wrongly disrupts the "natural harmony" thought to exist in human affairs, relies on coercion rather than moral suasion, and fosters litig- iousness and shameless concern for one's own interests rather than those of society. To an American observer, this idea that harmony is the ultimately desirable condition contrasts sharply with the predominant Western perspec- tives which focus on freedom as an absence of restraint and on autonomy and individual liberty as the highest goal. These Western notions, crystallized in the adversary system, pervade the American legal process and the lives of most of its citizens, including the lawyers.7 While many westerners would not accept adversariality as the very embodiment of freedom, individual autonomy and liberty, there is no doubt that in this country the adversary process is a vital feature of the judicial method of resolving legal disputes. The Supreme Court of the United States has declared as much, with emphasis, in a group of decisions that elevate the adversary process virtually to a constitu- tional imperative. In the Court's words, "concrete adverseness" is necessary because it "sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitu- tional questions."'8 Without concrete adverseness the litigants' dis- pute is not maintainable in the federal courts as a case or controversy. 6. M. CAPPELLETTI & D. TALLON, FUNDAMENTAL GUARANTEES OF THE PARTIES IN CIVIL LITIGATION 800 (1973) (quoting Lord Lloyd). 7. Riskin, Mediation and Lawyers, 43 OHIO ST. L. J. 29, 30 (1982). 8. Baker v. Carr, 369 U.S. 186, 204 (1962). CREIGHTON LAW REVIEW [Vol. 21 Requiring concrete adverseness helps assure that disputes come to the federal courts in a posture that satisfies the constitutional idea of justiciability: Embodied in the words "cases and controversies" are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judi- ciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case-and-controversy doctrine.9 Nearly 20 years earlier the Court had declared that an "honest and actual antagonistic assertion of rights" to be adjudicated is a "safeguard essential to the integrity of the judicial process."'10 This does not mean that every departure from the detailed forms of the adversary process will be struck down as a constitutional violation, but a flagrant deviation does run that risk. Judges who become overly aggressive in managing or directing important elements of lawsuits in their courts will be reversed on appeal. A judge's uneasi- ness over an abrupt ending of an action is no ground for overruling the litigants' desire to terminate the battle. In Webster Eisenlohr, Inc. v. Kalodner,11 Speese, a preferred stockholder of Webster Eisenlohr, brought a class action on behalf of himself and other preferred shareholders, claiming the preferred stock was entitled to exclusive voting power in the company and re- questing equitable relief. While the suit was pending, the company offered to purchase the preferred stock. The plaintiff and stockhold- ers for whom he was proxy sold their shares to the company. After- ward, at a hearing, counsel for Speese informed the court that he no longer had a client. Judge Kalodner was displeased. He appointed a master to investigate, among other things, the circumstances of the company's offer to the preferred stockholders, the question whether the securities laws were violated and other possible improprieties. In issuing a writ of mandamus against the judge, the court of appeals found that he had exceeded his power because: None of these stockholders was under guardianship; all had the full legal power to sell their shares under such circum- stances as it pleased them to sell. If any one felt that he had 9. Flast v. Cohen, 392 U.S. 83, 94-95 (1968) (emphasis added). 10. United States v. Johnson, 319 U.S. 302, 304-05 (1943). 11. 145 F.2d 316 (3d Cir. 1944), cert. denied, 325 U.S. 867 (1945). 1988] ALTERNATIVE DISPUTE RESOLUTIONS been deceived, he could take the steps necessary to protect his rights. There was no indication that any party to the transaction was complaining. We think that neither the re- port to the stockholders nor the sale of their stock was in- volved in the litigation. It was therefore outside the scope of investigation both by the Special Master and the court itself. We do not think this view imposes unduly restrictive limitations upon courts. The judicial power is limited to de- ciding controversies. That has been its function historically; that is its function under the Constitution of the United States. No doubt a great deal goes on in the world which ought not to go on. If courts had general investigatory pow- ers, they might discover some of these things and possibly right them. Whether they would do as well in this respect as officers or bodies expressly set up for that purpose may be doubted, but until the concept of judicial power is widened to something quite different from what it now is courts will better serve their public function in limiting themselves to the controversies presented by parties in litigation.12 While those views may seem, and perhaps are, unduly restrictive of the judge's prerogatives, they warn that it may be a mistake to suppose that the more active role many courts have assumed heralds the demise or even the drastic curtailment of the party-control ele- ment in litigation. Colombrito v. Kelly' 3 underlined that point. Anthony Colom- brito, a member of the Unification Church, brought a $9-million kid- napping action against Galen Kelly, a deprogrammer who allegedly had acted upon instructions from Colombrito's parents in taking him in charge. At trial the defense compelled Rev. Sun Myung Moon, the leader of the Church, to testify. Following the Reverend Moon's sec- ond day on the witness stand, Colombrito announced he was dis- missing his suit with prejudice. The trial judge refused to let him do so. He asserted that the trial had been in progress for three weeks, had cost hundreds of thousands of dollars in legal fees and ought not to be dismissed at the Church's apparent instance. The judge charged that the Church had been "running this lawsuit from the beginning" and that the plaintiff himself was "playing a little fast and loose with this court."1' 4 On appeal, the trial court's refusal to allow the plaintiff to dismiss the action was reversed summarily. The judge was prohib- ited from conducting further proceedings in the action. While the appellate courts' actions in Webster Eisenlohr and 12. Id. at 319-20. 13. 764 F.2d 122 (2d Cir. 1985). 14. New York Times, May 27, 1982, at 6, col. 4. CREIGHTON LAW REVIEW [Vol. 21 Colombrito did not rest squarely on constitutional bases, they obvi- ously reflect the same underlying values as the Baker, Mast and Johnson decisions referred to earlier. They recognize, as the Supreme Court does, that the motivation supplied by adverseness is essential to the case or controversy requirement; it qualifies the dispute as jus- ticiable. Of course, there are other advantages and benefits of the ad- versary process having no constitutional aura. Also, there are disadvantages and costs. Vigorous debates have raged about the best balance to strike in using or restricting adversariality. II. EVALUATING THE ADVERSARY PROCESS Evaluation presupposes standards. Since the adversary process is supposed to effectuate the goals of the court-centered dispute resolu- tion system,15 a logical starting point is to identify those goals. The next step is to assess the extent to which they have been realized by the process being evaluated.16 Ready accessibility is certainly one of the first requirements of an effective dispute resolution mechanism. The mechanism has to be designed so people who need to may use it - not only by being physi- cally available, but also by being affordable. That means it must not involve costs that are beyond people's means or disproportionate to the stakes. For fairness' sake a party haled before the tribunal should have due notice of what to expect, an honest chance to assert avail- able claims and defenses and a fair opportunity to get and present helpful proof. The procedures have to be made known in under- standable terms. The pace of the proceedings should be as rapid as a deliberative process can reasonably attain. Another essential quality is keeping the human touch. Both the users and the public should be convinced that the process has been created with genuine concern for their dignity and well-being. It should avoid mechanical, bureaucratic, assembly-line procedures. Humane concern is particularly important when the volume of dis- putes is large and the stakes are small. When necessary it must be sensitive to the value of protecting privacy. If possible, the system should function by processes that even disappointed parties find trustworthy. The chances of this are im- proved if those who encounter the system perceive the outcomes it 15. The dispute resolution system is made up of a variety of processes and mecha- nisms - including adjudication and arbitration, mediation and settlement, and many others. 16. I am much in debt to Murray L. Schwartz of the University of California at Los Angeles Law School for the useful set of evaluation standards he developed in his book on the legal profession. This paper draws heavily on his analysis. See M. SCHWARTZ, LAWYERS AND THE LEGAL PROFESSION (1979). 1988] AL TERNA TIVE DISPUTE RESOLUTIONS produces to be the end results of honest attempts to arrive at just de- cisions by fair means. This perception will no doubt gain strength if the process is open and public. Perhaps the simplest way to summarize these statements is by asserting the obvious: an optimal dispute resolution system is one that produces just results at the end of just proceedings. It is, in ad- dition, accessible, fair, expeditious, concerned, and protective of the dignity and privacy of the parties. All in all, such a system is likely to inspire confidence in the integrity, impartiality and commitment to justice of those who staff it. That is an immense challenge, one that no single method of dispute resolution could conceivably surmount in all types of cases. Common sense suggests that meeting the standards of the ideal system will require deploying a whole battery of dispute- resolving mechanisms, variously directed, variously driven and vari- ously employed. Where will that place the adversary process, extrav- agantly praised by its supporters and exuberantly condemned by its detractors? Will it measure up well when tested by criteria like those outlined above? Supporters urge that the adversary process improves the quality of fact-finding and law-applying by pointing up the issues and round- ing out the evidence and arguments. The effect of two-sided presentations, they say, is to expand the information available to the court to an extent far beyond what the court could acquire through its own investigation. Another effect is to provide the decision-maker with alternative analyses of the problems before it.17 All this helps produce just results and builds confidence in the process. One of the most frequently heard claims from the pro-adversary camp is Professor Lon Fuller's comment that adversary presentation combats "the natural human tendency to judge too quickly in terms of the familiar that which is not fully known.' 8 Critics deny that the adversary process improves the quality of decisions. On the contrary, they contend, it undervalues truth and justice and overvalues partisan impulses and a sporting theory of liti- gation. They maintain that a system that makes winning the legal battle all-important exacts serious costs for justice and public moral- ity. It does this by magnifying the parties' differences and driving them to more extreme positions and more unyielding attitudes. This comes about, they say, because the whole object of the proceeding is to identify a winner and a loser by decreeing that one side is "right" and the other "wrong." They believe that in many, many cases wag- 17. Middleton, Arbitration 'Not Magic' But Cures Some Ills, 68 A.B.A.J. 785, 786 (1982). 18. Fuller, The Forms and Limits of Adjudication, 91 HARV. L. REV. 353 (1978). CREIGHTON LAW REVIEW [Vol. 21 ing the lawsuit to achieve a zero-sum result cannot possibly produce truth and justice. They charge that the pro-adversarialism view rests on the mistaken premise that truth will emerge from two highly par- tisan arguments, mutually exaggerating the strengths and understat- ing the weaknesses of their case. Probably the commonest caricature of the adversary concept is a parody that goes: "Set two trained legal gladiators against one another, let them fight, claw and hack at each other until exhaustion and, presto, the truth will emerge." It would be far better, they urge, to let the judge assume a positive commit- ment to unearthing the truth. This calls for abandoning the passivity and consequent ineptitude that result from this "umpireal" approach to the judicial role, an approach denounced by Frankel as calling for the judge to view the case "from a peak of Olympian ignorance."'19 He said: The ignorance and unpreparedness of the judge are intended axioms of the system. The "facts" are to be found and as- serted by the contestants. The judge is not to have investi- gated or explored the evidence before trial. The ignorant and unprepared judge is, ideally, the prop- erly bland figurehead in the adversary scheme of things. Be- cause the parties and counsel control the gathering and presentation of evidence, we have made no fixed, routine, expected place for the judge's contributions.20 To such criticism the control-by-the-parties side replies that lodg- ing responsibility with them to set the scope of the dispute and de- velop evidence assures that the court will not go afield into matters the parties themselves do not want to publicize. Since it is entirely up to the parties to decide whether there is to be a contest at all, why shouldn't they be allowed to draw the battle lines? If they do, it is claimed, the result will be to narrow the issues and hold down the costs. Besides, if the parties bear the burdens of getting the evidence, the courts will not need to maintain a large investigatory apparatus. That will avoid the nest of bureaucratic evils official investigatory bodies tend to produce. But, it is argued, giving the lawyers so much power and so much incentive to win pushes them into abusive excesses. They engage in harassment, intimidation and manipulation. Pretrial discovery prac- tice is pointed to as a common example of the corrupting influence of runaway adversarialism. Discovery is supposed to be a way to un- cover evidence and leads to evidence and thus to advance the search for truth. Instead, today's discovery is seen as a legal x-ray machine 19. Frankel, The Search for Truth: An Umpireal View, 123 U. PA. L. REV. 1031, 1042-43 (1975). 20. Id. at 1042.