Professor Frank Sander (Harvard law) in his 1976 speech at the Pound Conference outlined his vision that, by the year 2000, our courts will not simply be court houses but dispute resolution centers, “where the grievant would first be channelled through a screening clerk who would then direct him to the process (or sequence of processes) most appropriate to his type of case”. This article is widely seen as marking the birth of the modern ADR movement.
When it appeared in 1984, Owen Fiss’s essay Against Settlement delivered a jarring critique of the budding alternative dispute resolution movement, particularly ADR’s focus on settlement. Raining on a parade of academic, judicial, and political enthusiasm for ADR, Fiss’s trenchant analysis prompted some of the paraders to stop and reassess the tune they were marching to. As David Luban points out, “Fiss was the first and boldest to argue that settlements are no cause for celebration—that, at best, they are “a capitulation to the conditions of mass society and should be neither encouraged nor praised.”
Fiss’s polemic defended an increasingly beleaguered and besieged judicial process at a time when an unlikely alliance of influentials — Supreme Court justices, reform-minded legal scholars, and business elites—decried an alarming “Litigation Crisis,” as they castigated adjudication’s endless delays, assembly-line pleas and hallway deal-making for exacerbating popular distrust of the entire legal system.
For commentary on the Fiss article and its legacy take a look at various articles written for Fordham Law Review’s Symposium Issue on Owen Fiss Against Settlement: Twenty Five Years Later as well as Don Ellinghausen’s – Justice Trumps Peace: the Enduring Relevance of Owen Fiss’s Against Settlement and Jeffrey Seul ‘s Settling Significant Cases)