ADR: end strife

ADR, it is called: ``Alternative dispute resolution.'' The subject of books, meetings, publicity, and (within the judicial community) a measure of uncertainty and concern, ADR is a catchall for every out-of-court method for terminating civil disagreement. Lawyers and judges, like other professionals and the general public, are always seeking a better way to get things done. In these days of four-year waits for civil trials and delays filled with expensive overuse of legal talent, the pressure for faster, less costly justice is overpowering.

The response, ADR (sometimes called ADRM, for ``alternative dispute resolution movement'') is less a solution than a sign that the consumers of justice are, at the very least, dissatisfied with the product the judges are turning out.

But to ignore it is to allow the problem to intensify.

Lawyers become judges for a variety of reasons, chief among which is the pleasure and satisfaction derived from the job of judging -- that is, of presiding over courtroom disputes. For many judges, any activity other than sitting in court not only lacks enjoyment; it constitutes role-abandonment.

Suggest to such a jurist that a judge's job should include managing the flow of cases through the system and he will likely reply that the state hires court clerks for that sort of menial task. Intimate that a judge confronting a civil case should spend time attempting to mediate a solution and the response may well be: ``Let an arbitrator do that; the state commissioned me to run trials.''

Wrapped up in this idea that a judge is a judge only when he referees a courtroom battle is the assumption that the parties to a litigation are at best contending to gain recognition as sole champion of the truth and at worst combating for a winner-take-all triumph.

That view may be both simplistic and wrong. Bear in mind that, nationwide, well over 90 percent of civil lawsuits end in settlement. Nine out of 10 court battles, that is, never reach a courtroom decision.

Put another way, the figures suggest that the parties are turning to the legal process not for victory, but for accommodation. They are not seeking the truth -- at least not in the sense judges adopt when they assure each other, ``The purpose of a lawsuit is to determine the truth.''

No, what the plaintiffs and the defendants want is peace, a negotiated peace. They come to court looking for a way to negotiate their differences rather than to win an outright victory. ADR and ADRM are merely expressions of the public's desire and need to enhance the bargain-striking possibilities.

Lawyers and judges do not always relate comfortably to this sentiment. After all, the lawyers earn their living by fighting, and the judges earn theirs by deciding disputes. Neither finds it easy to think that their respective services run counter to the demands of their consumers. Reluctance to acknowledge changing market conditions is, however, not unique to the juridical fraternity. Just ask American steelmakers and commercial fishermen.

Although mankind seems at times excessively combative and Americans seem particularly litigation prone, something deep within us seems to demand the ending of strife.

Consider the criminal-law side of our courts. Here, an array of constitutional rights, by design, make conviction more difficult; assistance of competent counsel is available without ability to pay; and an adverse result will produce some type of unpleasant result, perhaps even loss of liberty.

Yet despite all this encouragement not to surrender, more than 85 percent of all defendants plead guilty. Can this otherwise inexplicable rejection of logic rest, at least partly, on the need to reach an end -- ``to get it over with'' and look ahead rather than backward?

Should the justice system see ADRM not so much as an annoying innovation as the expression of a human necessity?

Hiller B. Zobel sits on the Massachusetts Superior Court.

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