Galanter, Marc

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University of Denver

Denver Law Review Volume 66 Issue 3 Symposium - Dispute Resolution Article 5 February 2021 Compared to What - Assessing the Quality of Dispute Processing Marc Galanter Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Marc Galanter, Compared to What - Assessing the Quality of Dispute Processing, 66 Denv. U. L. Rev. xi (1989). This Front Matter is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. INTRODUCTIONCOMPARED TO WHAT? ASSESSING THE QUALITY OFDISPUTE PROCESSINGMARC GALANTER*In the past dozen years, interest in Alternative Dispute Resolution("ADR") has inspired a burst of creative innovation and experimenta-tion. Compared to earlier crusades for alternatives, the contemporaryADR movement is more informed by empirical learning, more theoreti-cally sophisticated and more ambitious in scope. It advocates changenot only for the domains of the minor and marginal but for the legalheartland.The ADR movement has accelerated and popularized a salutaryshift in the discourse about law and disputing, a shift that reflects widerintellectual currents. The notion that current legal arrangements em-body a single right way to handle disputes has been drained of credibil-ity. We have learned to see legal institutions as part of larger ecology inwhich various dispute institutions interact and affect one another. Asthese interconnections become common knowledge, those who woulddesign orjustify legal institutions must accept responsibility not only forthe small world of adjudication but for the larger world of disputing andbargaining in which it is set.That dispute processing arrangements are contingent and mallea-ble has moved from academic insight to practical maxim. But once weaccept that dispute institutions might be redesigned to maximize bene-fits and reduce costs, we are committed to comparative assessment. Toevaluate a given dispute institution we have to compare its performancewith that of modified and alternative modes of resolving (and generat-ing) particular kinds of disputes. Such comparisons are attended by ahost of methodological and conceptual difficulties.1 The perplexities ofcomparison are compounded when we realize that an encounter or in-jury could be crystallized into very different kinds of disputes and couldbe handled in very different kinds of institutions. But although eachstrategy of comparison is subject to serious problems, comparative as-sessments are as unavoidable in practice as they are difficult in theory.Thus ADR has propelled us into a situation in which policy-makerscannot avoid making deliberate if fallible choices among alternative waysof processing disputes. Can inquiry give us any guidance about how* Evjue-Bascom Professor of Law and South Asian Studies, University of Wiscon-sin-Madison; Director, Disputes Processing Research Program.1. See M. GalanterJudges and the Quality of Settlements (1989) (working paperJE-1, Center for Philosophy and Public Policy, University of Maryland) (for a specification ofthese difficulties in the comparison of settlement with adjudication).xii DENVER UNIVERSITY LAW REVIEW [Vol. 66:3such choices should be made? The many reasons for preferring one dis-pute mechanism over another can be reduced to two basic arguments.The first of these, which we might call the "production" cluster, is thatone or another mechanism will produce "more" with less expenditure ofresources. Thus we find arguments that a given device will increase thenumber and speed of resolutions and lower their cost. A great deal oftalk about alternatives consists of claims about production effects. Dueto the infirmities of selection and measurement that often attend reformundertakings, there is probably a tendency to overestimate the degree towhich programs achieve such production effects. 2Even where it can be shown that one process is cheaper and fasterthan another, such a demonstration is necessarily incomplete, for it isnecessary to ask whether what is obtained for the lower cost is equallydesirable. We arrive at the question of the benefits or qualities that weattribute to the rival arrangements. This brings us to our second greatcluster of arguments-assertions about the superiority of alternativeprocesses or the outcomes that they produce. For example, it may beargued that a given process is superior because it increases the parties'satisfaction, encourages the re-establishment of friendly relations, ismore suffused by social norms, fosters integrative solutions, leads tomore compliance, generates useful precedents, and so forth. These as-sertions about beneficial characteristics are "quality" arguments. I usethe term "quality" as shorthand for the valued aspects of the process,including but not confined to justice, and including but not confined tothose aspects that admit of quantification. The term was adopted tosummarize and emphasize the wide range of valued characteristics, apartfrom cost, time and institutional convenience, that are implicated in dis-puting. Although quality arguments, explicit or tacit, are everywhere indiscussions of dispute resolution, much less attention has been given toanalyzing and appraising quality effects than to the more readily measur-able production effects.To explore the theoretical and practical issues surrounding theseneglected issues of quality, the Disputes Processing Research Programat the University of Wisconsin organized a workshop on "Identifyingand Measuring the Quality of Dispute Resolution Processes and Out-comes" that was held in Madison, July 13 and 14, 1987.3 The Workshopbrought together practitioners and academics for two days of intensivediscussion of beliefs and practices about quality issues in disputeprocessing. We thought this uncharted territory could best be exploredby preserving a spontaneous, brainstorming character. Participantswere encouraged to share their perceptions and perplexities, but not to2. See the classic exposition of this point by Campbell, Reforms as Experiments, 24AMER. PSYCH. 409 (1969).3. The workshop was supported by the University of Wisconsin's Dispute ProcessingResearch Program, under a grant from the William and Flora Hewlett Foundation, and bythe National Institute for Dispute Resolution. The planning committee consisted of How-ard Bellman, John Esser, Carrie Menkel-Meadow, Catherine Meschievitz, Judith Resnik,David Trubek, and the present author.INTRODUCTIONprepare papers. Instead, we commissioned distinguished scholars inseveral disciplines (law, philosophy, political science, psychology, andsociology) to report on the proceedings from their several perspectives.The present Symposium consists of those reports and John Esser's re-view of the evaluations literature on dispute resolution. They areneither a record nor a revision of what was said at the Workshop; insteadthey are individual responses to those discussions. We hope that they inturn will contribute to a richer and more coherent discourse about theassessment and comparison of dispute processes.To put these reports in perspective I would add a few observationson the context of the quest for quality. First, the discussion of "quality"is not to be subsumed under the discussion of ADR, as if whatever it isalternative to (presumptively, adjudication) can be taken as un-problematic in quality. Although the issue of assessing performance wasraised by the claims of ADR's proponents and the challenges of its crit-ics, the thrust of the quality discussion is not to put ADR in the dock butto challenge the quality credentials of every dispute institution, includ-ing the most established "traditional" ones.Second, it is important not to be distracted by the fiction of a radicalsplit between ADR and "traditional adjudication." Most ADR is not lo-cated in autonomous institutions that operate independently of thenorms and sanctions of the legal system. Instead ADR is typically situ-ated near legal institutions and dependent upon legal norms and sanc-tions. Correspondingly, most of what goes on in and around courts isnot "traditional adjudication" if that means the decisive application oflegal norms to fully presented specific cases. Instead we find maneuver-ing, bargaining, and (often) mediation in the shadow of possible adjudi-cation-and the expense and risk of obtaining it. That ADR andadjudication reside in distinct normative worlds is a persistent elementin the mythology of the partisans of each, in spite of ample evidence ofthe pervasive continuities.Third, curiously those dispute institutions that flourish and enjoyrelative autonomy tend to be omitted from discussions of ADR. Oursocial institutions are honeycombed by indigenous forums that elabo-rate and enforce complex codes of conduct-in hospitals, schools, con-dominiums, churches, the NCAA and a multitude of other settings.4 Farmore disputing is conducted within these indigenous forums than in allthe free-standing and court-annexed institutions staffed by arbitrators,mediators and other ADR professionals. This profusion of indigenouslaw reminds us that the world of disputing includes much more thantraditional adjudication and the new ADR institutions.Fourth, we should resist the pervasive mischaracterization of ADRas informalism. The displacement of bi-lateral negotiation by court-an-nexed arbitration or a summary jury trial marks not a decrease but anincrease in proceeding through prescribed forms. Nor does it mark a4. The significance of these forums is discussed in Galanter, Justice in Many Rooms:Courts, Private Ordering and Indigenous Law, 19 J. LEGAL PLURALISM 1 (1981).1989]DENVER UNIVERSITY LA W REVIEWdecrease in the involvement of professionals or the reliance upon statecoercion. ADR is not so much informalism as "short form formalism;"not so much deprofessionalization as a change in professionals. But it isa species of de-regulation: the tie of procedures and sanctions to deci-sive application of public rules is loosened.Fifth, once we appreciate that an encounter or injury may be crystal-lized into very different kinds of disputes and may be handled in verydifferent kinds of institutions, we recognize that sorting disputes by theirsuitability to particular dispute processes is not a technical exercise but apolitical choice of which kinds of disputes deserve which kinds of re-sponse, which in turn reflects our commitments about the good societyand the good life.Sixth, if disputes are contingent and malleable, what kind of knowl-edge is possible about the quality of their processing? Strikingly, theevaluation experts at the workshop made no claim to provide definitiveobjective answers to quality questions, but offered their technology as aresource for competing programs inspired by different politics of jus-tice. But if talking quality is ultimately talking politics, it doesn't followthat talking politics is talking quality. We still have much to learn by thearts of systematic comparison and measurement.We seem to be entering a period of intense debate about which dis-putes should be addressed in the courts and which diverted elsewhere.For example, should social security disputes be removed from thecourts? Should major business disputes be encouraged to depart to pri-vate forums? What kind of "alternative" tracks should be attached tothe courts? And what kind of supervision and review of alternativesshould the courts undertake? All of these questions turn on what wehave called the quality issues. Debate about quality is inevitable.Even though these issues are complex and multi-dimensional, theycan be advanced though not resolved by careful analysis and by empiri-cal measurement. We can bring a whole repertoire of quality conceptsand techniques of inquiry to bear on specific kinds of disputes. We needspecified and contextualized studies in which institutional alternativesare compared not in terms of the supposed unvarying characteristics ofdispute methods, but in terms of a relevant array of "quality" issues. Ifour choices are inevitably political we should aspire to a politics aboutreal alternatives not imaginary ones.[Vol. 66:34111

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