Alternatives to litigation

Remember the TV commercial where the not-so-sweet little old lady samples the sponsor's doughnuts and sneers, ''Why, they taste just like my own secret recipe. See you in court, buster!''?

One can almost hear the plaintive voices of reformers crying out: ''No, no, not court.'' They would recommend use of arbitration or a minitrial or some type of neighborhood dispute settlement for such a case.

Americans have long engaged in a superb irony. In droves they bad-mouth courts and lawyers, but in even larger numbers they continue to litigate and litigate and litigate. Civil cases in federal courts have swelled to more than 230,000 during the past year - double the caseload of a decade ago. Meanwhile, the number of lawyers in the United States now totals somewhere around 600,000 - twice the figure for the 1960s.

One could ask: Does litigation breed lawyers, or do lawyers breed litigation? The answer is as unequivocal as a barrister's advice: Yes!

But even though Americans aren't yet willing to pocket their affidavits and march out of the courtroom, there is mounting pressure from a small minority of advocates for what is known as ''alternative dispute resolution.''

Leading the parade is Chief Justice Warren Burger. Warning against a future society ''overrun by hordes of lawyers, hungry as locusts,'' he is eager to see more efficient disposition of legal disputes. He recently lauded the resolution of a multimillion-dollar contract dispute between the Wisconsin Electric Power Company and the American Can Company as an ''impressive example of the success of a minitrial,'' an out-of-court resolution that led to substantial savings to both taxpayers and the parties involved.

With the Burger endorsement, a number of groups are stepping up campaigns to woo the general public and, particularly, corporate America to alternative dispute resolution.

They point out that it can offer:

* Substantially lower costs.

* A minimum of rancor and ill feelings between parties.

* Emphasis on problem solving rather than on winning cases and gaining punitive damages.

* Resolution aimed at fairness for all parties.

Alternative dispute resolution takes different forms in different places. Several private groups, such as EnDispute, Judicate, and Civicourt, package consulting services for both individuals and businesses, assessing each case and recommending such routes as arbitration or minitrials. Some of the groups offer direct advocacy. Others provide mediators. The rent-a-judge program in California employs former jurists to help clients reach agreements.

EnDispute's president, Jonathan B. Marks, insists that a ''consumer revolution'' in the legal area is under way. He and his consulting colleagues in Washington, Chicago, Los Angeles, and San Francisco tailor their services to the needs of clients. After just two years in operation, EnDispute was instrumental in the resolution of the Wisconsin Electric-American Can case heralded by Chief Justice Burger.

Mr. Marks admits alternative dispute resolution works best in civil disagreements, ranging from domestic quarrels and neighborhood disputes to insurance claims and big-business confrontations. Criminal justice, he feels, is best left to traditional courts.

The concept is still in its infancy. Probably more than 90 percent of all civil disputes in the US are still decided in court. Critics warn that the concept has some shortcomings. Some point out that, if only minor disputes are diverted from court to alternative forums, this could result in second-class justice for poor people who can't afford to pay for a court case. Others also voice concern that informal hearings, not bound by law or legal precedent, could impair the functions of courts and legislatures and work against the goal of justice.

''One can imagine,'' noted EnDispute's Marks in a recent speech before the National Institute of Dispute Resolution, ''a law intended to improve the lot of consumers having little or no effect because most or all consumer disputes were being resolved through mediation or an informal adjudication body which based its decisions on what seems fair and just in the particular case without regard to statutory or decisional law.''

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