Unintended Consequences of ADR
By Justice James Marchiano (Ret.)
The renaissance of alternative dispute resolution (ADR) in California civil law in the last thirty years has produced a sea change in how lawyers practice, has altered our legal culture, and generated an extraordinary rippling effect of unintended consequences. I will discuss five of these unintended consequences from my perspective as a trial judge for ten years and appellate justice for fifteen years after first looking back at what led up to the change.
Let’s briefly stroll down memory lane. Remember that over the years, over 98% of all filed civil cases have settled at some time before trial. But how long "before" became the crucial question. Before "Fast Track" legislation made judges accountable for case management and early disposition of cases in 1988, the backlog of civil jury trial cases caused many cases to languish anywhere from two to over four years before going to a trial department. A revolutionary change occurred in 1988 with the enactment of the Trial Court Delay Reduction Act: trial judges were mandated to resolve 75 percent of assigned cases in one year, ninety percent in eighteen months, and most of their remaining cases within 24 months. Semiannual Bench/Bar settlement conferences using panels of plaintiff’s attorneys, defense attorneys and judges helped resolve many cases pre-1988, but it was not enough. Fast Track judges, each managing over six hundred cases, used issue conferences before trial to try to settle cases, but it was not enough. Having to prepare for trial multiple times with the debilitating cost to the client and the stress of lost weekends for the attorney and staff was more than enough. Under pressure to resolve cases in a mandated timely way, in the early 1990’s, courts began to facilitate reference to mediation as an adjunct to direct case management. Judicial arbitration was ordered for cases with a value under $50,000. Initially, time-consuming, complex, multi-party business and construction defect cases found their way to local lawyer/mediators who specialized in such cases. At the same time the cost of preparing and trying cases continued to spiral, especially from escalating expert witness fees and lawyers’ thirst to search under every rock with a discovery tools.