Harry N. Mazadoorian

The issue of the “Vanishing Trial” has been a topic of discussion for the past several decades, with numerous articles, conferences and symposia devoted to examining its existence, causes and remedies. Connecticut has seen a number of such articles and conferences, especially following some thoughtful discussion generated by the late jurist Mark Kravitz. One particularly thorough discussion took place at a Connecticut Bar Foundation Conference in 2012.

Many varying opinions have emerged: whether the vanishing trial phenomenon in civil cases is something new and even whether it actually exists; what are its causes; and how it should be addressed going forward.

An October issue of the Connecticut Law Tribune contained a commentary by the editorial board addressing the concept. The opinion identified a few widely cited causes for the vanishing trial phenomenon in civil cases, (I will not address comments on criminal cases) one being the individual voir dire and another being the “rising cost” of litigation. Nothing surprising there.

What was surprising, however, was the commentary's harsh treatment of alternative dispute resolution and focusing on it as a principal culprit. While the editorial board gave the obligatory back-handed compliment to ADR by acknowledging its many benefits “to be sure in reducing costs and saving time and money,” any praise was faint indeed.

The commentary identified alternative dispute resolution as one of the causes of the diminution of trials by jury and concluded that “it by and large has become a cottage industry for retired judges,” perhaps unaware of (a) the significant number of cases administered by many organizations such as the American Arbitration Association where large panels of neutrals (such as I)—who are not retired judges—are used and (b) many industry panels where the arbitrators and mediators are from professions other than law. Most surprisingly the commentary jumped to the conclusion that the increased use of alternative dispute resolution “is frankly a threat to a fundamental part of democracy.” Indeed, it painted its commentary with a very, very broad brush, without making any distinction among the many variations of ADR processes. Conclusions reached about consumer ADR might not be applicable to business to business ADR nor to public dispute ADR.

The opinion made no mention of other ADR benefits besides time and cost savings, such as the right of parties to self-determination—one of the most essential and valued hallmarks of democracy—as well as selecting their own dispute resolution process and personally and meaningfully participating in the process, especially in mediations. What could be MORE democratic than self-determination? Is it any surprise then that private mediative dispute resolution processes have been encouraged in numerous settings since time immemorial?

Certainly, the early settlers of this country ranging from New England Colonists to the Philadelphia Quakers sought out alternatives to litigation even as they were forming the democracy which ADR is now accused of threatening.

The criticism fails to distinguish the right to a jury trial from the benefit of a jury trial.

Thoughtful cautions about over use of alternatives to litigation have been offered since the beginning of the current ADR revolution. Professor Own Fiss' seminal article Against Settlement in 1984 initiated much discussion about the risks and appropriateness of private settlements and dispositions especially in connection with disputes involving power and resource imbalance between the parties as well as numerous other categories. These include public disputes, disputes involving certain groups of people where consent is lacking and disputes where ongoing monitoring and enforcement are required. Fiss concluded that settlement need not necessarily achieve justice. These arguments have since been amplified by numerous distinguished scholars.

Counter challenges and rebuttals at the time of Fiss' writing by thought leaders such as Harvard's then-President Derek Bok encouraged “gentler arts of reconciliation and accommodation.” More recently, Kenneth Feinberg, with his unparalleled experience in achieving settlements—especially in mass tort situations—appropriately asked, “If you are against settlement in any realistic way, however you define it, what is the alternative?” In a separate presentation at Quinnipiac Law School he stated that “the idea that ADR is going to replace our civil justice system is highly unlikely.”

Of late, some forms of ADR, particularly adjudicative models, have rightly earned their own share of criticism. Included here are numerous binding mandatory arbitration clauses in areas such as consumer and employment disputes where contracts of adhesion keep parties from making a truly informed decision concerning foregoing a court trial. Such mandatory adjudicatory processes are also challenged as shielding questionable practices from public view.

The Editorial Board did a service to its readership by raising the vanishing trial issue for continued examination. However, the topic warrants a much more comprehensive discussion before reaching the hasty conclusion that increased use of ADR is a” threat to a fundamental part of democracy. “

The vanishing trial phenomenon in civil cases, its causes and ramifications, is complex with myriad underlying factors. Ever changing benefits and risks often make disputants' decisions as to whether to proceed to trial a complicated and difficult one.

No one disputes that jury trials are an essential element of our democracy and are to be revered. They must be available. But disputants cannot be forced to use them, as Fiss pointed out. Reasonable alternative methods of dispute resolution, selected by the parties with true informed consent, must be recognized for the benefits they offer, which benefits extend far beyond time and cost savings.

To give such a summary dismissal to the benefits of ADR, as the editorial board's opinion did, is to throw the baby out with the bathwater. In demonizing alternatives to trial as undemocratic, the commentary missed the value—and necessity—of ADR in our civil justice system.

Harry N. Mazadoorian is a commercial arbitrator, mediator and member of the American Arbitration Association's Master Mediator Panel. He is the distinguished senior fellow in the Center for Dispute Resolution at Quinnipiac University School of Law.