OPENING DOORS TO JUSTICE. Legal experts urge greater use of alternatives to formal trials. Many disputes yield to methods like arbitration, summary trials
Cambridge, Mass. — What this country needs, says Harvard law Prof. Frank E.A. Sander, is more doors on its courthouses. Justice in America would be more accessible and more satisfactory, and courts less congested, Mr. Sander says, if what has come to be known as the ``multidoor courthouse were adopted. This multifaceted approach, he explains, would present a citizen with a panoply of low-cost or no-cost options for settling a case.
``We shouldn't funnel everything into court regardless of whether it's best treated by court or not,'' says Sander, who is chairman of the American Bar Association's standing committee on dispute resolution.
``Generally speaking,'' he says, ``mediation is a better way'' for settling disagreements between two people in a continuing relationship - neighbors separated by a crumbling fence, a tenant whose sink the landlord is slow to fix, a divorcing couple with children. A neutral party listens to both sides, then offers a solution that tries to address both parties' concerns.
``People are a lot happier to live with a solution they helped compose than with one that was imposed on them,'' says Linda Finkelstein, director of Multi-Door Dispute Resolution Center, a pilot program in Washington, D.C.
Court trials and mediation would be but two ``doors'' in the courthouse Sander sees. Some others:
Minitrials. Instead of corporation lawyer battling corporation lawyer in court, senior executives of companies hear shortened presentations of both sides of a case, then meet to work out a solution.
Use of ombudsmen. A neutral party investigates complaints, usually against an institution or branch of government, and recommends solutions.
Summary jury trials. An abbreviated, usually one-day trial before a judge and jury in which the jury gives an advisory opinion after hearing presentations. It is a way to test the outcome of a case and urge parties toward a settlement, avoiding a full-fledged trial
Arbitration. A neutral party hears arguments, reviews evidence, and issues a decision that is binding on both parties of a dispute.
Some of these alternative dispute resolution mechanisms (ADRMs) already exist in many jurisdictions, but it's ``catch as catch can,'' Sander says. Ideally, he adds, a well-trained ``screening clerk'' would be placed at the courthouse door to direct citizens to forums where their problems might best be handled.
The American Bar Association (ABA) has sponsored multidoor programs over a two-year period in Tulsa, Okla.; Houston, and Washington. A National Institute of Justice survey last year found that more than 80 percent of the people using the programs were satisfied and would use the service again. Nearly 60 percent said the centers helped them. Seventy-five to 80 percent of clients - some 28,000 since 1984 - who have gone through Houston's Dispute Resolution Centers came up with solutions without going to court, according to director Melinda Ostermeyer.
None of the programs handle serious criminal matters, large civil disputes involving substantial sums, or particularly complex legal issues.
Michael Prigoff, a member of the ABA's standing committee on dispute resolution, says he considers himself an advocate of ADRMs but still has ``a lot of reservations'' about the ``systemic'' effect such alternatives have.
Mediation almost always occurs behind closed doors, and Mr. Prigoff, a partner in a small law firm in New Jersey, points out that ``privatizing disputes ... prevents others from seeing the results.'' In the case of an unsafe automobile, for example, millions of car owners might never learn of a manufacturing defect if claims were all privately mediated.
Most agree that ADRMs relieve pressure on the courts, and are less expensive to operate. But Sander is clear that he's not for ajudication alternatives just because of that: ``Even if every court in the country were current, I'd be for this just the same,'' he says, ``because it's a question of the appropriateness of the dispute resolution mechanism for the particular case.''
Other questions raised about ADRMS: Might due process be at risk, with citizens shunted toward forums in which they could not exercise their full legal rights? What if, in a divorce mediation, a subservient wife who has never worked agrees to a ridiculously low alimony from her domineering husband?
Prigoff's answer is to establish ground rules that would keep parties of unequal power from entering mediation. Sander concurs that more research is needed to determine which disputes are best fitted to which resolution mechanism.
A strong dissenter is Laura Nader, an anthropologist at the University of California at Berkeley who has studied conflict resolution in cultures around the world. She says that some alternatives are attractive and appropriate, such as mediating corporation-to-corporation disputes. But who, she asks, looks over the shoulders of arbitrators and mediators, even court-sanctioned ones, if such proceedings are private? There is no public record to examine, she points out.
Long term, Ms. Nader says, she is concerned that such reforms lead toward a false harmony that silences, rather than solves, discord, and a mind-set that views plaintiffs as ``patients'' who are sick, rather than victims requiring redress.